Watergate Special Prosuection Force Report

WATERGATE

Special

Prosecution

Force

For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 - Price $2.65
Stock Number 027-000-00335-4

Contents

Page

Introduction 1

Brief History of the Watergate Special Prosecution

Force 4

Policies and Procedures for Investigation and

Prosecution 21

Major Investigations and Other Actions 50

Relations With White House During the Nixon and
Ford Administrations 87

Concluding Observations and Recommendations 134

APPENDIX

A. Status Report of Cases 155

B. Organizational History 171

C. Relations With the U.S. Attorney for the

District of Columbia 100

D. Relations With the Attorney General 195

E. Relations With Congressional Committees 205

F. Relations With Other Law Enforcement

Agencies 217

G. Press Relations 227

H. Computer Systems 231

I. Administration 242

J. Charter Documents 245

K. Chronology 253

L. Bibliography of Watergate Source Materials__ 265

M. Staff List 274

iii

Introduction

The Watergate Special Prosecution Force (WSPF) has worked
for 28 months as an independent investigatory and prosecutive
agency within the Department of Justice. As a result of its work,
judges and juries have applied the criminal sanction to an unpre-
cedented number of high Government officials and to important
business leaders. The Special Prosecutor’s mandate includes the
requirement that he shall report to the public and to Congress about
his activities.

Some of the task lies ahead. Appeals will proceed for probably
two years or more. A few cases have to be completed. But most of
the work of the office is done and most of the staff have finished their
tasks. It now seems appropriate to summarize the completed work
in a comprehensive report.

No group of prosecutors and supporting personnel ever have
labored under greater public scrutiny. Every decision seemed to be
a delicate one and previously uncharted courses frequently had to
be faced. Each action occurred in the midst of a national turmoil
and, in retrospect, some may be judged in the future as just plain
wrong. This report seeks not to justify, but to explain. The Congress,
the American people and other law enforcement agencies gave con-
tinued support to the efforts of this office. A full accounting, within
the confines and strictures that the law properly places upon pros-
ecutors, is required.

This report contains no facts about alleged criminal activity not
previously disclosed in a public forum. Many public officials saw
the Special Prosecutor as one with special privileges to lay bare what
witnesses had said and to offer his own, personal conclusions as to
what really happened. Other persons also asserted that President
Nixon’s pardon, and Congress’ passage in the middle of WSPF’s
work of a retroactive, 3-year statute of limitations for campaign law
violations (replacing the normal 5-year period for initiating pro-
secutions) reinforced the propriety of releasing grand jury testimony,
informants’ allegations, and the confidential assertions of cooperative
witnesses.

However, for WSPF to make public the evidence it gathered
concerning the former President and others who were not charged

1

with criminal offenses would be to add another abuse of power to
those that led to creation of a Special Prosecutor’s office. The Federal
Rules of Criminal Procedure prohibit the disclosure of information
presented to a grand jury except as necessary in the course of criminal
proceedings. 1 The American Bar Association reinforces this stricture
in its Code of Professional Responsibility and limits the circumstances
under which attorneys involved in criminal investigations are free
to make out-of-court statements about the details of their work.

Most important, in terms of the American constitutional system
of government, is the notion of fundamental fairness for those who,
after investigation, have not been charged with any criminal miscon-
duct. This consideration is particularly important for a Special
Prosecutor whose independence considerably reduces his accountabil-
ity and who must be unusually sensitive to possible abuses of his
power. It is a basic axiom of our system of justice that every man is
innocent unless proven guilty after judicial proceedings designed to
protect his rights and to ensure a fair adjudication of the charges
against him. Where no such charges are brought, it would be irre-
sponsible and unethical for a prosecutor to issue a report suggesting
criminal conduct on the part of an individual who has no effective
means of challenging the allegations against him or of requiring the
prosecutor to establish such charges beyond a reasonable doubt.

The decision to remain within the boundaries placed upon all other
prosecutors is in no sense an absolute bar to public knowledge;
approximately a quarter of a million pages of Watergate facts already
exist for public consumption. This material includes the public hear-
ings and published reports of the Senate Select Committee on Presi-
dential Campaign Activities and the House Judiciary Committee,
other existing and forthcoming reports of Congressional committees,
the voluminous records of the criminal trials resulting from WSPF’s
investigations, evidence obtained in several civil suits, and numerous
books and articles analyzing the events of “Watergate” from a variety
of perspectives. The most significant of such records are listed in a
bibliography in the appendix to this report. In addition, the Presi-
dential Recordings and Materials Preservation Act of 1974, if upheld
by the courts, will provide the public with access to enormous amounts

1 Recorded Presidential conversations were made available to the Special
Prosecutor and the grand jury only for use in the investigation and prosecution
of criminal charges, not for the purposes of a public report. Since the Supreme
Court in United States v. Nixon ordered the President to supply the tapes only
for such use, the Special Prosecutor is barred from disclosing any Presidential
materials other than those used in court proceedings. The public’s right of access
to these materials, along with the former President’s assertion of ownership and
executive privilege to control their disclosure, is now the subject of litigation
which also restrains release of Presidential materials.

2

of information from the files of the Nixon Administration, including
tape recordings of Presidential conversations.

Subject to the constraints described above, the following report
attempts to describe accurately and completely the policies and opera-
tions of the Watergate Special Prosecution Force from May 29, 1973
to the middle of September 1975. The five chapters of the main report
contain a narrative of operations, a description of office policies and
practices in investigative and prosecutive decisions, summaries of
major investigations, a narrative of relations with the White House
during the Nixon and Ford Administrations, and observations and
recommendations. The attached appendix contains more detailed
information on the organization of the office; relations with U.S.
Attorneys, Congressional committees and other law enforcement
agencies; press relations; the office administration and information
system; a chronology; a status report of all court matters; and the
bibliography.

3

Brief History
of the Watergate
Special Prosecution Force

BACKGROUND AND ESTABLISHMENT OF OFFICE

Agents of the Committee to Re-Elect the President (CRP) broke
into the Democratic National Committee headquarters in the Water-
gate office complex on June 17, 1972. The resulting conspiracy,
burglary, and wiretapping charges produced convictions of seven
men the following January in a trial before Chief Judge John J. Sirica
of the U.S. District Court for the District of Columbia. By that time
various public allegations had created suspicions that high-level
officials of CRP and the Nixon Administration had engaged in a
variety of illegal activities connected with the 1972 campaign, of which
the Watergate break-in was only one. As a result, the Senate estab-
lished its Select Committee on Presidential Campaign Activities,
chaired by Senator Sam J. Ervin, Jr.

On March 19, 1973, before the Select Committee hearings started,
James W. McCord, one of the convicted Watergate burglars, wrote
an explosive letter to Judge Sirica who was to sentence him 4 days
later. McCord’s letter, revealed in open court, claimed that Govern-
ment witnesses had committed perjury during his trial and that the
trial had failed to identify others involved in the Watergate operation.
Throughout April, news accounts based on the reopening of the
criminal investigation, the initial Select Committee inquiries and
press investigations — as well as public statements by the Adminis-
tration — increased public doubt about the conduct of high White
House and campaign officials. These doubts heightened at the end
of April with the dismissal of the counsel to the President, and the
resignation of the Attorney General, the acting director of the Federal
Bureau of Investigation, and two of the President’s closest aides.
Further public concern arose about the desirability of the U.S.
Attorney’s office continuing its investigation, especially in light of
publicly assumed interference from Justice Department and White
House officials. During his confirmation hearings before the Senate
Judiciary Committee, the newly designated Attorney General, Elliot

4

Richardson, pledged to appoint an independent special prosecutor to
take over the inquiry.

With the approval of the Judiciary Committee, Richardson and
Archibald Cox, his ultimate choice for the post of Special Prosecutor,
agreed upon the terms of Cox’s charter. The resulting statement,
entitled “Duties and Responsibilities of the Special Prosecutor,” be-
came part of Department of Justice regulations and defined the
Special Prosecutor’s jurisdiction in these terms:

The Special Prosecutor shall have full authority for investigat-
ing and prosecuting offenses arising out of the unauthorized entry
into Democratic National Committee headquarters at the Water-
gate, all offenses arising out of the 1972 presidential election for
which the Special Prosecutor deems it necessary and appropriate
to assume responsibility, allegations involving the President,
members of the White House staff, or presidential appointees, and
any other matters which he consents to have assigned to him by
the Attorney General.

Richardson also pledged to Cox adequate funding, complete inde-
pendence in hiring and supervising his staff, and sole responsibility
for contesting any “executive privilege” or “national security” claims
which might be raised to prevent the acquisition of evidence. Cox could
decide whether to seek grants of immunity (subject to the Attorney
General’s approval as required by statute), and whether and to what
extent he would inform or consult with the Attorney General about his
work. Richardson further agreed that he would not “countermand or
interfere with the Special Prosecutor’s decisions or actions,” and that
he could remove Cox from office only for “extraordinary improprie-
ties.” On May 25, 1973, Cox was sworn in as Special Prosecutor and
the Watergate Special Prosecution Force (WSPF) was officially
established within the Department of Justice.

MAY 25-OCTOBER 20, 1973

Richardson had told the Senate Judiciary Committee that Cox’s
jurisdiction would include the Watergate case, the activities of alleged
political saboteur Donald Segretti, the office burglary of Dr. Lewis
Fielding, Daniel Ellsberg’s psychiatrist, and illegal activity involving
1972 campaign contributions that Cox chose to investigate. Richardson
later referred to Cox certain allegations, including possible perjury in
Senate hearings relating to Administration handling of an antitrust
suit against the International Telephone and Telegraph Corporation
(ITT). When the Justice Department’s Criminal and Tax Divisions
were conducting any investigations regarding matters related to his
jurisdiction, they would inform the Special Prosecutor and ascertain
if he wanted to take responsibility. In addition, after initial discussions
and inquiries, the Special Prosecutor arranged to use the FBI for

5

investigative work and to send investigative requests directly to the
Bureau without transmittal through the Attorney General. 1

One of Cox’s first problems was the possible impact on his work of
the Senate Select Committee’s televised hearings, which had begun
about a week before he took office. Although the Committee and the
Special Prosecutor’s office were investigating many of the same allega-
tions about Watergate and other Nixon Administration activities,
each meant to use the information it would gather for a different
purpose, in accord with its particular responsibilities. The Committee
sought to bring facts before the public in order to propose legislative
remedies for any abuses it might uncover; the Special Prosecutor had
the responsibility of investigating and prosecuting specific criminal
charges. The danger existed that legislative hearings might frustrate
the criminal proceedings. For example, in order to obtain the testimony
of several important witnesses, the Committee planned to immunize
them, thus barring any prosecution that could be shown to be based
on any direct or indirect use of their Senate testimony. In addition,
the televised hearings might create adverse publicity about potential
defendants in criminal trials, especially a Watergate trial that then
seemed likely to begin in a few months. For these reasons, Cox re-
quested that the Committee postpone its hearings; the Committee
quickly rejected this request.

Before two Committee witnesses were immunized, Cox acted to
reduce the chance that a future criminal case against either of them
would be “tainted” by evidence obtained as a result of their testimony.
He arranged to have the evidence already gathered against each of
them deposited under seal with the District Court before they testi-
fied at the Committee hearings. And, to minimize possible pretrial
publicity and ensure maximum fairness to potential defendants, he
sought a court order that the Committee’s grants of immunity be
conditioned on its holding hearings in executive session, or at least
without radio and television coverage. However, Judge Sirica con-
cluded that he had no power to issue such an order to a Congressional
committee, and Cox decided not to appeal the decision, since a pro-
longed conflict with the Committee would have kept both groups from
their investigative work and the likelihood of a successful appeal was
doubtful. In the end, the continuation of public hearings through the
summer of 1973, among other benefits, brought to public attention
testimony relating to alleged White House involvement in the Water-

1 Richardson and Cox also made an agreement as to the prosecution of former
Administration officials and others on charges relating to favorable treatment of
financier Robert Yesco in return for a campaign contribution. While the matter
was within the Special Prosecutor’s jurisdiction, Cox agreed that it should con-
tinue to be handled by the U.S. Attorney’s office for the Southern District of New
York, which had conducted the investigation and obtained the indictment in the
case. Thereafter, WSPF exercised very little supervisory authority over the case.

6

gate cover-up and other crimes and thereby helped create for the
Special Prosecutor's investigation a base of public and Congressional
support that did much to force the re-establishment of WSPF after
the President's attempt to abolish it later that year.

This early conflict over the possible harm that the Committee's
televised hearings would inflict on the cover-up investigation soon
subsided. In other WSPF matters, the Committee's staff had com-
menced its investigation some months before the prosecutors were
appointed and had gathered much information of value to WSPF.
Most of this information was placed on computer tapes, which the
Committee agreed to provide to the prosectors. 2 WSPF decided to
undertake a similar computer operation, and arranged to use the same
Library of Congress computer system so that information gathered
from other sources could be cross-referenced with that obtained by
the Committee.

Meanwhile, Cox was selecting a staff that eventually numbered,
in permanent positions, 37 attorneys, 16 other professionals, and 32
supporting personnel by August 1974. 3 The bulk of the investigative
work was divided among five task forces, each responsible for a broad
area of investigation — the Watergate break-in and cover-up; the
allegations about ITT and possible perjury during 1972 Senate hear-
ings; the activities of the White House “Plumbers" group, including
the break-in at Ellsberg's psychiatrist's office ; 4 Segretti's activities
and other alleged campaign “dirty tricks"; and illegal conduct in the
financing of the various Presidential campaigns of 1972.

Assisting and providing support for the task forces were several
other groups. A counsel's office was established to provide legal advice
to the Special Prosecutor and the task forces. An information section
went to work summarizing and cross-indexing the masses of Congres-
sional and grand jury testimony that had already been gathered,
and creating a filing and reference system that would give any WSPF
investigator access to whatever information was already available
in the area of his inquiry. An office of public affairs handled relations
with the press — an especially sensitive task in view of the dual de-
mands of the First Amendment's free-press guarantees and the right
of a potential defendant to a trial unprejudiced by publicity about
his conduct. An administrative office dealt with the many problems
of space allocation, payroll, supplies, equipment, clerical help, and

2 While the initial agreement between the Committee and the Special Pros-
ecutor had covered only information made public at the Committee’s hearings,
the Committee agreed in March 1974 to provide WSPF with computer access to
other information its staff had gathered which had not been disclosed in hearings.

3 In addition, there were ten temporary employees at that time.

4 This task force also looked into various alleged abuses related to Federal
agencies and later into possible illegal activity in connection with President
Nixon’s tax returns.

7

messenger service. The FBI and IRS supplied personnel who worked
closely with WSPF in some of its investigations, while the Federal
Protective Service provided security services for WSPF’£ offices in a
private building in downtown Washington.

The Assistant U.S. Attorneys who had handled the initial Water-
gate investigation — Earl Silbert, Seymour Glanzer, and Donald
Campbell — worked with WSPF until the end of June, when they
returned to the U.S. Attorney’s office for the District of Columbia.
The grand jury that had brought the original Watergate indictment
in the fall of 1972, and had received new evidence in the spring of

1973, continued to hear evidence gathered by WSPF in the Watergate
cover-up case. In August a second grand jury was empaneled to hear
evidence in other cases, and a third grand jury was added in January

1974. Because the original grand jury was so familiar with the Water-
gate case, special legislation in December 1973 extended its term
beyond the normal 18 months.

As the various task forces were absorbing information already
gathered by other investigators and beginning to interview witnesses
and bring them before the grand jury, the Senate Select Committee
continued its hearings. In June, former White House counsel John
Dean gave testimony implicating President Nixon and his closest
advisors in the Watergate cover-up. On July 16, a former White
House official told the Committee that President Nixon in 1971 had
installed in the White House a taping system designed to record his
meetings and telephone conversations. This revelation opened up
the possibility of obtaining evidence that could resolve the con-
flicting testimony about alleged involvement of Administration
officials in various crimes.

On July 23, the Special Prosecutor, after unsuccessful attempts
to obtain such material from the President on a voluntary basis,
issued a subpoena on behalf of the grand jury for the tapes,
notes, and memoranda of nine conversations which the available
evidence indicated were relevant and necessary to the investigation.
The President opposed the subpoena, and appealed Judge Sirica’s
order enforcing it to the U.S. Court of Appeals for the District of
Columbia Circuit. After first suggesting that Cox and the White
House seek a compromise — which they were unable to do — the ap-
pellate court on October 12 affirmed Judge Sirica’s order with modifi-
cations sought by the Special Prosecutor. The Court directed Judge
Sirica to listen to the tapes to determine whether they contained
discussions subject to a valid claim of executive privilege, and then
turn over any unprivileged sections of the tapes to the grand jury.

While the litigation over the subpoenaed tapes had delayed the
Watergate and other WSPF investigations, the prosecutors had made
considerable progress in the first six months of their work. The Water-

8

gate investigation had produced guilty pleas from Fred LaRue, Jeb
Magruder, and John Dean on charges of conspiracy to obstruct
justice. Donald Segretti had pleaded guilty to charges of conspiracy
and distributing campaign literature without properly identifying its
source, in connection with his “dirty tricks” operation. Egil Krogh, Jr.
had been indicted for lying to the grand jury in prior testimony
regarding the “Plumbers’ ” activities. Three large corporations —
American Airlines, Goodyear Tire and Rubber, and Minnesota
Mining and Manufacturing — had entered guilty pleas to making
illegal corporate contributions in the 1972 Presidential election, as
had the responsible officers of two of them. Dwayne Andreas and his
First Interoceanic Corporation had been charged with the same
offenses. Other investigations had progressed, and were expected to
produce additional indictments and guilty pleas. In the negotiations
leading to their guilty pleas, Segretti, LaRue, Magruder, and Dean
had agreed to disclose to WSPF what they knew about the Watergate
case and other matters under investigation.

Dean’s guilty plea and agreement to cooperate with the prosecutors
came October 19, the last day for the President to seek Supreme
Court review of the decision ordering him to produce the tapes.
Instead of asking the Supreme Court to hear the case, he announced
a proposed compromise: Senator John Stennis would listen to the
tapes and review a statement of their contents; if verified by Stennis
the statement would then be given to the Special Prosecutor and the
grand jury. Under an integral part of the proposal, Cox would agree
not to litigate further with respect to the nine tapes or to seek addi-
tional tapes in the future.

In a news conference the following day, Cox stated his reasons for
not accepting the proposal. Edited summaries, he noted, probably
would not be admissible as evidence in court. His agreement not to
seek additional tapes would prevent WSPF from conducting its
investigations thoroughly. And the order to accept the compromise
terms, he said, was inconsistent with the pledge of independence he
had received from Attorney General Richardson at the time of his
appointment.

That evening, October 20, the White House announced the events
that came to be known as the “Saturday Night Massacre”: President
Nixon ordered Attorney General Richardson to dismiss Cox for his
refusal to accept the White House proposal; Richardson resigned
rather than carry out the order, and Deputy Attorney General William
Ruckelshaus was fired for his refusal to obey; finally, Solicitor General
Robert Bork, next in seniority at the Justice Department, dismissed
Cox as Special Prosecutor. Also on White House orders, agents of
the FBI occupied the offices of WSPF, the Attorney General, and
the Deputy Attorney General in order to prevent the removal of any
documents. WSPF staff members, gathered in their offices, were

9

informed that they would work henceforth as part of the Justice
Department’s Criminal Division.

The events leading to Cox’s dismissal had been foreshadowed by a
number of his contacts with Attorney General Richardson over the
previous months. On several occasions Richardson had asked whether
particular matters Cox appeared to be investigating were under his
jurisdiction and had expressed concern that Cox’s inquiries were
going into areas not contemplated when WSPF was established.
Some of these questions were inherent in the apparent breadth of
Cox’s charter. Other questions rose from Richardson’s own misgivings,
and those of White House officials.

The actions which Richardson raised in conversation with Cox
included WSPF’s possible inquiry into the financing of President
Nixon’s two homes, its broad letters to several Federal agencies
asking their policies and practices in electronic surveillance, the inter-
viewing of a former White House aide who had prepared a controver-
sial plan for intelligence gathering by the executive branch, investiga-
tion of wiretaps claimed to be justified by national security, and an
inquiry into the handling of campaign contributions by a close friend
of the President. In July, because both he and Cox were uneasy about
the prospect of a series of politically motivated referrals to WSPF of
charges against the President or his Administration, with attendant
publicity, Richardson had suggested that the Criminal Division
screen all allegations to determine whether they were substantial
and fell within WSPF’s jurisdiction before sending them on to Cox.
Cox quickly rejected this proposal and Richardson did not pursue
it. In August, citing the concerns of White House officials that Cox
was reaching beyond his charter, Richardson proposed revising the
Special Prosecuter’s charter to define his jurisdiction with more
precise limitations, and appointing a special consultant on national
security matters to serve as an expediting intermediary between the
Special Prosecutor and agencies from which he was seeking informa-
tion regarding such matters. Cox felt that it was his own responsibility
to determine what matters fell within the terms of his existing charter,
and rejected any charter revisions as unnecessary. Cox also disagreed
with the idea of a national security consultant because he saw such an
official as a possible hindrance rather than an aid to obtaining neces-
sary information.

Richardson also informed Cox of White House positions on various
issues, including the production of evidence in response to the Special
Prosecutor’s requests. Despite their willingness to take independent
positions on such legal issues as executive privilege and national
security, Richardson and Cox had also made efforts to reach agree-
ment on such issues. During the period just before his resignation and
Cox’s dismissal, Richardson had made efforts to achieve a compromise

10

on the question of the Special Prosecutor's access to the subpoenaed
tapes.

OCTOBER 20, 1973-AUGUST 9, 1974

The “Saturday Night Massacre” did not halt the work of WSPF,
and the prosecutors resumed their grand jury sessions as scheduled
the following Tuesday. Bork placed Assistant Attorney General
Henry Petersen, head of the Criminal Division, in charge of the in-
vestigations WSPF had been conducting. Both men assured the staff
that its work would continue with the cooperation of the Justice
Department and without interference from the White House. Upon
WSPF's request, Judge Sirica issued a protective order to limit access
to, and prevent removal of, WSPF files. Despite their anger over
Cox's dismissal and their doubts about the future of their office, the
staff members, in a series of meetings, decided to continue their
work for the time being.

Nevertheless, the dismissal of Cox and the President's refusal
to produce the subpoenaed tapes provoked what one White House
official called a “firestorm” of public criticism and serious talk of
impeachment on Capitol Hill. In an abrupt reversal, the President
announced on October 23 that he would comply with the grand jury
subpoena and on October 26 that Bork would appoint a new Special
Prosecutor who would have “total cooperation from the executive
branch.” While the President said he would be unwilling to produce
additional White House tapes or other evidence that he considered
privileged, he placed no restrictions on the new Special Prosecutor's
authority to seek such evidence through the courts.

On November 1, the President announced that he would nominate
Senator William B. Saxbe as the new Attorney General. Later that
day, Acting Attorney General Bork announced his appointment of
Leon Jaworski as Special Prosecutor. Jaworski, who was sworn into
office November 5, was assured the same jurisdiction and guarantees
of independence as Cox, with the additional provision that he could
be dismissed, or his jurisdiction limited, only with consent of a bi-
partisan group of eight Congressional leaders. Three days after taking
office, Jaworski told a House subcommittee that the continuity of
WSPF operations had been restored and that the office's staff would
remain intact.

Meanwhile, a number of bills had been introduced in Congress
to provide for judicial appointment or other safeguards of the inde-
pendence of the Special Prosecutor. In the wake of the “Saturday
Night Massacre,” many people thought it impossible to assure an
independent investigation by anyone appointed solely by the exe-
cutive branch of Government or subject to dismissal without Con-

11

gressional approval. Others including Chief Judge Sirica and some of
his fellow judges opposed the idea of a court-appointed prosecutor,
and Saxbe testified that he had accepted his nomination only on the
condition that Jaworski’s investigation would remain independent.
Jaworski testified that he would welcome any legislation protecting
his independence further, but was satisfied with his charter and the
assurances he had been given. In mid-November, ruling on a civil
suit that challenged the dismissal of Cox, District Judge Gerhard
Gesell held that Cox’s firing had been illegal. However, noting that
Cox had not sought reinstatement, the judge said there was no reason
to interfere with Jaworski’s tenure. As a result of all these events,
Congress abandoned the idea of establishing a special prosecutor’s
office by legislation.

Less than a week after the President’s attorney had told Judge
Sirica that the nine subpoenaed tapes would be produced for his
examination, another White House lawyer announced that two of
the conversations for which tapes had been sought had in fact never
been recorded. Shortly thereafter, during a court inquiry into the
question of the President’s compliance with the subpoena, White
House lawyers disclosed that the tape of a third conversation con-
tained a substantial “gap” — a humming sound which obliterated
some 18 % minutes of one of the President’s conversations— and that
dictabelts of the President’s recollections of two of the conversations
contained shorter gaps. A panel of experts chosen by White House
and WSPF lawyers reported in January 1974 that the 18%-minute
gap had been caused by a series of deliberate erasures, and that it
was impossible to retrieve the original conversation. Judge Sirica
thereupon referred the matter to a grand jury. A lengthy investigation,
conducted by WSPF and the FBI, concluded that only a small
number of people had had the opportunity to make the erasures but
was unable to fix criminal responsibility on any particular individual
or individuals.

Meanwhile, the task force investigations continued. By the end
of 1973, five more corporations — Braniff Airways, Ashland Petroleum
Gabon Inc., Gulf Oil Corporation, Phillips Petroleum Company,
and Carnation Company — and their responsible officers had pleaded
guilty to making corporate contributions to 1972 Presidential cam-
paigns. Former Presidential aide Dwight Chapin had been indicted
for making false statements to the grand jury in connection with
Segretti’s activities. Egil Krogh, Jr., former head of the White House
“Plumbers,” had entered a guilty plea to conspiring to violate the
rights of Dr. Fielding, whose office had been broken into in a vain
attempt to obtain Daniel Ellsberg’s psychiatric records.

The new year brought additional indictments and guilty pleas.
Herbert Porter, a former aide in the President’s re-election campaign,
pleaded guilty to making false statements in connection with the

12

original investigation of the Watergate ease. Jake Jacobsen, an
attorney who had helped milk producer cooperatives make campaign
contributions and obtain an increase in milk price supports, was
indicted on charges of making false statements to the grand jury.
Herbert Kalmbach, the Presidents personal lawyer and an active
campaign fundraiser, pleaded guilty to a felony violation of the
Federal Corrupt Practices Act in his fund-raising for candidates in
the 1970 Congressional elections and to a charge of promising an
ambassadorship to a campaign contributor.

Efforts to obtain additional recordings and other documents from
the White House, for use as evidence in various grand jury investiga-
tions, continued during the winter of 1973-74. For a short period
after Jaworski took office, the White House offered limited cooperation
by supplying some of the numerous tapes and documents requested
by WSPF over the past four months. In January, however, the
President retained as counsel James St. Clair, whose major concern
-appeared to be protecting him against possible impeachment. The
President stopped his initial cooperation with Jaworski, and WSPF
requests were soon met by unusual delays and claims that some
materials could not be located. Other materials, the President said,
were unnecessary to the grand jury investigations. To furnish them
would be inconsistent with his constitutional responsibilities.

During the winter, and again in the late spring of 1974, Jaworski
met periodically with General Alexander Haig, the President’s chief
of staff. For the most part, these meetings involved attempts by
Jaworski to persuade Haig that the President shoxild provide WSPF
with materials it was seeking. Haig complained about particular
actions by WSPF staff members, including their intensive questioning
of White House witnesses in the grand jury and their efforts to have
FBI agents interview White House staff members in connection with
the investigation of the 1834-minute tape gap.

On March 1, the grand jury returned an indictment in the Water-
gate cover-up case of seven men formerly associated with the White
House or CUP — Charles Colson, John Ehrlichman, H. R. Haldeman,
Robert Mardian, John Mitchell, Kenneth Parkinson, and Gordon
Strachan — on charges of conspiracy, obstruction of justice, and, as
to some, perjury and false declarations. A week later six men —
Bernard Barker, Colson, Felipe DeDiego, Ehrlichman, Gordon
Liddy, and Eugenio Martinez — were indicted for conspiring to
violate Dr. Fielding’s civil rights in connection with the illegal entry
of his office, and Ehrlichman was charged in addition with making
false statements to the FBI and the grand jury about the case.

The grand jury hearing evidence in the Watergate case concluded
that President Nixon had been a participant in the cover-up. However,
after extensive legal research in the office, Jaworski concluded that
it would be improper to indict an incumbent President for such a crime

13

591-439 0 - 75 -2

when the House of Representatives’ Judiciary Committee had
already begun a formal impeachment inquiry. He believed, in addi-
tion, that such an indictment would be challenged and ultimately
overturned by the Supreme Court, and that the fruitless litigation
would delay the trial of the seven cover-up defendants and possibly
also temporarily halt the impeachment inquiry. The grand jury then
authorized the Special Prosecutor to name President Nixon as an
unindicted co-conspirator in the cover-up case. Since this finding was
relevant to the impeachment investigation, WSPF asked the grand
jury to report to the court all of its evidence relating to the President’s
alleged involvement in the cover-up, with a recommendation that
Judge Sirica forward the report to the House Judiciary Committee.
The grand jury did so and by order of Judge Sirica, upheld by the
Court of Appeals, the report was delivered to the Committee on
March 26.

Discussions had been held between Committee attorneys and
WSPF several months before. The prosecutors felt obligated to assist
the Committee to the extent that such assistance was legally proper
and would not jeopardize WSPF’s investigations. In February, with
the consent of White House counsel, WSPF had provided the Com-
mittee with a list of tapes and documents it had received from the
White House, and in March the office supplied a list of those items
requested from White House files but not received. As soon as the
existence of the grand jury report became public knowledge, the
President’s counsel agreed to supply the Committee with all materials
that had been supplied to the Special Prosecutor, and he subsequently
did so. Later in the spring, when the Committee sought access to
various records under seal of the court, the Special Prosecutor on most
occasions indicated his approval. WSPF’s task force heads also met on
several occasions with Committee attorneys to provide relevant
information. Necessary ground rules protected the secrecy of grand
jury proceedings and the confidentiality of WSPF sources of informa-
tion. The prosecutors suggested what witnesses the Committee should
interview on what subjects, and what lines of inquiry were likely to
prove fruitless for their purposes.

After months of frustrating efforts to obtain grand jury and trial
evidence from the White House, including recordings of Presidential
conversations, Jaworski decided that he would have to resort, as his
predecessor had, to judicial process. A grand jury subpoena of
March 15 had resulted in the production of campaign contribution
documents from White House files but had not called for Presidential
tapes. At Jaworski’s request, Judge Sirica issued a trial subpoena on
April 18 in the cover-up case for recordings and documents related to
64 specified Presidential conversations. Unlike the previous subpoenas,
which had been issued by the grand juries in connection with their
investigations, this one was issued by the court so that WSPF could

14

prepare adequately for the trial in the Watergate case, then scheduled
to begin early in September.

On April 30, two days before the date for compliance with the trial
subpoena, the President released to the public edited transcripts of
some of the recorded conversations which had been subpoenaed by
both the House Committee and WSPF, claiming that “the ma-
terials . . . will tell it all.” The next day, he formally refused to provide
the tapes to Judge Sirica contending that some of the materials cov-
ered by the subpoena were protected by executive privilege, that dis-
closure would be “contrary to the public interest,” and that the sub-
poena was invalid because the tapes would be inadmissible as evi-
dence. His attorneys filed a motion to quash the subpoena.

Jaworski informed Haig and St. Clair a few days later that im-
minent argument in court by WSPF in an effort to enforce the sub-
poena would require the statement that the President had been named
as an unindicted co-conspirator. Jaworski offered to withdraw the
subpoena, thus postponing disclosure of the President's status until
later trial proceedings, if the White House supplied voluntarily 16
specified tape recordings that WSPF considered crucial. A few days
later, after listening to the tapes in question, the President sent word
to Jaworski that his proposed compromise was unacceptable.

During ensuing litigation over the White House motion to quash
the subpoena, the President's counsel asserted that the Special
Prosecutor, as an employee of the executive branch, lacked authority
to seek evidence from the White House by judicial process. This
renewed the argument used seven months earlier to justify the dis-
missal of Cox. In accordance with a promise he had made when
appointed, Jaworski immediately informed the chairmen of the Senate
Judiciary Committee and House Judiciary Committee of the new
challenge to his independence. By resolution the following day, the
Senate Committee affirmed its support of Jaworski's right to take the
President to court, and urged Attorney General Saxbe to “use all
reasonable and appropriate means to guarantee the independence”
of the Special Prosecutor. Two days later, Saxbe promised the Com-
mittee that he would support WSPF’s independence.

On May 20, Judge Sirica denied the President's motion to quash
and ordered him to comply with the subpoena. After the President's
lawyers announced their decision to appeal this order, Jaworski
asked the Supreme Court to consider the matter as soon as possible,
bypassing the Court of Appeals in order to avoid unnecessary
delays. The Supreme Court agreed to do so, over White House
opposition.

After legal briefs and oral arguments had been scheduled in an
unusual summer session, the Court ruled unanimously on July 24
that the President must comply with the subpoena. While recognizing
for the first time the Constitutional doctrine of executive privilege,

15

the Court held that “the generalized assertion of privilege must yield
to the demonstrated specific need for evidence in a pending criminal
trial.” The President announced that he would comply with the Court’s
ruling and with the subpoena.

In the days that followed, the House Judiciary Committee con-
cluded its inquiry by adopting three articles of impeachment to be
reported to the full House of Representatives for its consideration.

On August 5, the President released to the public transcripts of
portions of recorded conversations held six days after the Watergate
break-in. His accompanying statement acknowledged that in the
conversations he had ordered steps taken to conceal from the FBI the
involvement of White House and campaign officials, and he admitted
that he had kept this evidence from his own lawyers and Congres-
sional supporters. On August 9, in the face of overwhelming support
for impeachment in the House and almost certain conviction in the
Senate, he resigned the Presidency.

The Special Prosecutor’s efforts to obtain Watergate trial evidence
from President Nixon did not inhibit other WSPF investigations and
prosecutions. A trial jury convicted Dwight Chapin of lying about his
knowledge of campaign “dirty tricks.” Gordon Liddy, one of the men
convicted in the original Watergate break-in case, was indicted, tried,
and convicted of contempt of Congress, for his refusal to testify before
a House committee. The ITT investigations resulted in two con-
victions : former Attorney General Richard Kleindienst pleaded guilty
to giving inaccurate testimony to a Senate Committee, and Lieutenant
Governor Ed Reinecke of California, who chose to stand trial, was
convicted of perjury.

Investigations of campaign contribution activity also continued
during the spring and summer of 1974. Diamond International
Corporation, Northrop Corporation, Lehigh Valley Cooperative
Farmers, and National By-Products, Inc., all entered guilty pleas to
making illegal campaign contributions. The principal officer of Dia-
mond, two officers of Lehigh Valley, and two officers of Northrop
pleaded guilty to similar charges. American Ship Building Company
and its chairman George Steinbrenner were indicted for making
illegal contributions, and Steinbrenner was also charged with con-
spiracy and obstruction of the grand jury’s inquiry. Another official of
American Ship Building acknowledged guilt as an accessory to an
illegal contribution. A jury in New York found John Mitchell and
Maurice Stans, two former members of President Nixon’s cabinet,
not guilty of charges connected with contributions by financier
Robert Vesco, and a federal judge in Minnesota acquitted the First
Interoceanic Corporation and Dwayne Andreas of illegal contribution
charges.

The investigation into the campaign activities of Associated Milk
Producers, Inc. (AMPI) resulted in several prosecutions. Former

16

AMPI officials Harold Nelson and David Parr pleaded guilty to
conspiracy charges, with Nelson also acknowledging his part in a
conspiracy to make an illegal payment to a public official. AMPI
entered a guilty plea to charges of conspiracy and making five cor-
porate contributions. The perjury charge against attorney Jake
Jacobsen had been dismissed on technical grounds, but he pleaded
guilty to a later charge of making illegal payments to a public official.
The same indictment charged former Treasury Secretary John Connally
with accepting such payments and with conspiracy and perjury.
Later in the summer of 1974, Norman Sherman and John Valentine
pleaded guilty to aiding and abetting unlawful AMPI contributions.

While WSPF’s subpoena of White House tapes for the Watergate
trial was pending before Judge Sirica, Judge Gerhard Gesell was hear-
ing pretrial motions in the Fielding break-in case. Because of doubts
about the legal effect of a previous grant of immunity to defendant
Felipe DeDiego, the judge dismissed the charges against him. Judge
Gesell also ruled against a defense argument that the entry into Dr.
Fielding’s office had been justified by considerations of national
security. Shortly after this ruling, one of the defendants, former
White House aide Charles Colson, pleaded guilty to obstructing
justice in the federal criminal case brought against Daniel Ellsberg
after his public release of the Pentagon Papers. Colson admitted that
White House efforts to discredit Ellsberg by public release of deroga-
tory information were intended to interfere with his fair trial. As a
result of this plea and his agreement to disclose what he knew about
matters under the Special Prosecutor’s jurisdiction, the charges against
Colson in the Watergate case and the original charges against him in
the Fielding break-in case were dropped. The break-in trial began
June 26 and ended July 12 with the convictions of the four remaining
defendants — Bernard Barker, John Ehrlichman, Gordon Liddy, and
Eugenio Martinez.

AUGUST 9, 1 974-OCTO BER 1, 1975

The Nixon resignation presented WSPF with an immediate
question: should the former President be prosecuted as a private
citizen for whatever crimes he might have committed while in office?
Jaworski, after announcing that he had reached no agreement or
understanding with anyone about the former President’s possible
prosecution, said he intended to defer a decision on whether to seek
any indictments. The WSPF staff needed time to analyze all the
relevant factors. But, on September 8, before the Special Prosecutor
had decided whether to seek an indictment, President Ford pardoned
his predecessor for any and all Federal crimes he might have com-
mitted while President.

17

President Nixon's resignation also raised questions of access to
the White House papers and recordings which WSPF needed in its
investigations of possible criminal conduct during his Administration.
President Ford's counsel assured WSPF on August 15 that the former
President's files would be kept in White House custody until their
ownership had been resolved. However, when he announced the
pardon September 8, President Ford also revealed an agreement —
made without any prior notice to the Special Prosecutor — giving the
former President control over access to the files, which would be kept
in a Government installation near the Nixon residence in California.
President Ford based his position on a Justice Department opinion
that the former President was the legal owner of the materials, and
on his belief that their physical security could be assured by main-
taining them in Government custody. The Special Prosecutor dis-
agreed with the President's view of the situation and suggested that
he might challenge the September 8 agreement in court. Resulting
discussions among WSPF, Justice Department, and White House
officials produced an agreement whereby the Nixon files would
remain in White House custody pending review of the question of
WSPF's access to them.

On October 17, the former President filed a lawsuit to compel
enforcement of the September 8 agreement giving him control over
access to his White House files. The court issued a temporary re-
straining order prohibiting access to the materials without the consent
of attorneys for both the former President and President Ford. On
November 9, based on President Ford's determination that the needs
of justice required direct access to the Nixon files by the Special
Prosecutor's office, the President's counsel, along with the directors
of the General Services Administration and the Secret Service,
agreed in writing with the Special Prosecutor on procedures for
direct access by WSPF. The Special Prosecutor’s office then began
discussions with former President Nixon's counsel to obtain his
consent to this agreement.

Because of the needs of all parties to prepare adequately for trial,
the Watergate cover-up trial was postponed from September 9 to
October 1 pursuant to a suggestion from the Court of Appeals to
Judge Sirica. Doubts about the effect on the prosecution’s case of
grants of immunity to defendant Gordon Strachan led to his severance
from the trial. 5 On October 12, shortly after the jury had been se-
questered, Special Prosecutor Jaworski announced that he would
resign as of October 26, stating that the bulk of the office's work
had been completed. He also announced that he had decided not to
challenge President Ford's pardon of former President Nixon in

5 Charges against Strachan were dismissed on the Special Prosecutor's motion
March 10, 1975.

18

the courts because he did not believe such a challenge would have
any chance of prevailing. Thus WSPF ended its consideration of the
former President as a possible defendant. Jaworski was succeeded
October 26 by Henry S. Ruth, Jr., who had served as deputy to
both of the previous Special Prosecutors.

During the months following President Nixon's resignation, WSPF
obtained additional indictments and convictions. George Stein-
brenner and the American Ship Building Company pleaded guilty to
charges of conspiracy and making an illegal campaign contribution,
and “DKI for '74/' a committee supporting the re-election of Senator
Daniel Inouye, pleaded guilty to failing to report a contribution
received from Steinbrenner. Guilty pleas for illegal contributions were
entered by LBC&W, Inc. and its principal officer, Greyhound Cor-
poration, Ashland Oil, Inc., Ratrie, Robbins, and Schweitzer, Inc.
and its principal officers, and the principal officer of HMS Electric
Corporation. Tim Babcock, an executive of Occidental Petroleum,
Inc. and formerly Governor of Montana, pleaded guilty to making a
campaign contribution in another person's name. Oklahoma lawyer
Stuart Russell and Minnesota lawyer Jack Chestnut were both in-
dicted in connection with milk-producer contribution activities. Jack
Gleason and Harry Dent, former White House aides, pleaded guilty
to violating the Federal Corrupt Practices Act in their fund-raising
for the 1970 Congressional elections. Edward Morgan, a former Dep-
uty Counsel in the White House, pleaded guilty to conspiracy to
defraud the Government in connection with an income tax deduction
taken by former President Nixon.

Most of these actions occurred as the Watergate cover-up trial
was taking place during the autumn of 1974 in Judge Sirica's court-
room. Efforts to obtain former President Nixon's testimony at the
trial were frustrated when three court-appointed physicians reported
that his serious illness prevented his testimony for several months.
After a three-month trial, defendants Ehrlichman, Haldeman,
Mardian and Mitchell were found guilty by the jury, and defendant
Parkinson was acquitted.

Early in 1975, WSPF's staff began a steady reduction as investi-
gations and prosecutions were completed, but office business con-
tinued through the spring and summer. Los Angeles lawyer Frank
DeMarco and Chicago book dealer and appraiser Ralph Newman
were indicted on conspiracy and other charges related to their roles
in the preparation of former President Nixon's income tax returns.
Former Secretary of Commerce Maurice Stans, who had headed the
Finance Committee to Re-Elect the President, pleaded guilty to three
violations of the Federal Election Campaign Act's reporting require-
ments and to two violations of accepting corporate contributions.
Former Treasury Secretary Connally was found not guilty by a jury
on charges of accepting illegal payments, and the remaining charges

19

against him were dismissed. A New York City jury convicted Jack
Chestnut of a felony for aiding and abetting an illegal milk-producer
contribution 6 and a San Antonio, Texas, jury convicted Stuart
Russell of three felonies for conspiracy and aiding and abetting other
dairy industry contributions. Former Congressman Wendell Wyatt
pleaded guilty to a reporting violation under the Federal Election
Campaign Act.

Discussions with the former President’s counsel about WSPF
access to Nixon Administration tapes and documents resulted in an
understanding that permitted the prosecutors to obtain relevant
evidence. Beginning in February 1975, with an index prepared by
Government archivists, the prosecutors designated the particular
files they wanted searched for documents and recordings related to
specified investigations. The file searches were conducted by archivists
under the supervision of President Ford’s counsel; former President
Nixon’s attorney reviewed all requested recordings of Presidential
conversations and provided copies of those which might be pertinent
to WSPF’s investigations. Between February and June, WSPF
obtained numerous documents and tapes generated in the White
House during the Nixon Administration. On June 23 and 24, after
negotiations with the former President’s counsel, several WSPF
attorneys and two members of the grand jury took Nixon’s testimony
under oath near his California residence.

A considerable portion of the prosecutors’ work in 1975 involved
the numerous appeals that followed convictions at trial and other
court actions. Matters on appeal included the convictions in the 1973
Watergate trial, the later Watergate cover-up trial, the Fielding
break-in trial, the trials of Dwight Chapin, Ed Reinecke, and Stuart
Russell, and the sentence imposed on Tim Babcock. The prosecutors
unsuccessfully sought reversal of a court order moving the trials of
Frank DeMarco and Ralph Newman to two separate cities and
intervened in litigation to oppose Mr. Nixon’s contention that the
Presidential Recordings and Materials Preservation Act of 1974
deprived him unconstitutionally of his Presidential papers. The
appellate process in some cases is expected to extend at least through
1976.

The grand juries which had heard evidence obtained by WSPF
were dismissed when their terms expired. The first, originally
empaneled on June 5, 1972, and extended by legislation was dismissed
on December 4, 1974. After having sat for the standard 18-month
term, the second was dismissed February 12, 1975, and the third,
July 3, 1975.

6 After the WSPF investigation and grand jury indictment, the office of the
United States Attorney for the Southern District of New York conducted the
trial at WSPF’s request.

20

Policies and

Procedures for Investigation
and Prosecution

BEGINNING INVESTIGATIONS

The Special Prosecutor's new charter covered a number of matters
already under investigation by other agencies when Archibald Cox
took office in May 1973. The U.S. Attorney's office for the District
of Columbia had been handling the Watergate break-in case and the
cover-up allegations. The Fielding break-in had come to its attention
in the course of that inquiry, as had possible violations of campaign
financing and reporting laws which it had referred to the Justice
Department's Criminal Division. That Division had also begun
inquiries into possible perjury at the Senate confirmation hearings
of Richard Kleindienst to be Attorney General. The hearings had
been reopened earlier to explore the possible relationship between
the alleged commitment of International Telephone and Telegraph
Corporation to help finance the 1972 Republican convention and the
Justice Department's settlement of an antitrust suit against the
corporation. And a Federal grand jury in the Middle District of
Florida had indicted Donald Segretti on May 4 for criminal acts in his
“dirty tricks” operation.

The creation of WSPF centralized the investigation of these
related allegations, many of which involved the same individuals,
into a unified single agency. However, the Special Prosecutor realized
that an undetermined volume of matters not yet investigated would
also fall within WSPF's jurisdiction. Thus, the office organization
developed into five task forces and the investigative category of each
was sufficiently broad to include assumption of existing investigations
and categories of responsibility in the anticipated general areas of
inquiry. Each task force began its work by giving attention to the
particular matters it had been created to investigate. But as time
passed and additional possible violations of law came to the office's
attention most of the task forces undertook new inquiries, which in
most cases bore some relation to the matters they had been estab-
lished originally to investigate.

21

The task force initially assigned to look into the Fielding break-in,
for example, eventually examined numerous allegations against the
“Plumbers” and other White House staff for illegal activities in gen-
erating electronic surveillance and IRS harassment of many citizens.
In 1974, partly because it had been investigating possible violations
of law relating to the Internal Revenue Service, it was assigned to
look into possible violations in connection with President Nixon’s
taxes. The “Dirty Tricks” Task Force, initially assigned the Segretti
case, eventually investigated many allegations of similar conduct
in connection with the 1972 campaigns of both Republican and
Democratic candidates. The Campaign Contributions Task Force
began its inquiries with a series of allegations about illegal corporate
contributions and quid pro quo relationships between contributions
and Administration actions, and ultimately came to investigate
hundreds of such allegations. It also undertook the investigation
of charges relating to the campaign activities of Associated Milk
Producers, Inc. The ITT investigation, which had begun by focusing
on the antitrust settlement and possible perjury at the Kleindienst
hearings, eventually included other allegations relating to ITT, such
as the Securities and Exchange Commission’s handling of an investi-
gation of the corporation and an Internal Revenue Service ruling on
the merger of ITT and another corporation. The only task force whose
initial responsibilities were not enlarged later was the one handling
the Watergate cover-up case, although its work came to include
inquiries into some matters ancillary to that case, such as the 18%-
minute gap in one of the White House tapes.

The information with which WSPF began its investigations came
from many sources : the original prosecutors’ summary memorandum,
grand jury and trial testimony, FBI investigative reports, Congres-
sional hearing transcripts, depositions in civil suits, and newspaper
and magazine articles. How much information each task force received
at its start or at the start of any later investigation depended on how
far investigations by others had progressed; a few matters were well
developed by the time WSPF began its work, while many others
were unsubstantiated charges.

The Watergate cover-up case had progressed substantially by the
time WSPF took it over. The Assistant U.S. Attorneys who had
originally handled the matter worked with WSPF attorneys on the
investigation and briefed Cox and his staff on their findings. At
Cox’s request, their files were moved into the Special Prosecutor’s
office. In its dealings with the original prosecutors, WSPF was faced
with two conflicting needs: to obtain all the information developed
by their investigation, as well as ensure its aggressive continuity,
and at the same time to avoid any appearance that the Special
Prosecutor’s investigation was dependent upon theirs, or limited
merely to reviewing their work. The conflict was resolved when the

22

original investigators withdrew from the investigation on June 29 and
returned to the U.S. Attorney’s office. During the 1-month transition
period, WSPF personnel had sat in on their meetings with witnesses
and attorneys and their presentations to the grand jury, and all
decisions in the Watergate investigation had been submitted to Cox
for his approval.

In contrast to the Watergate Task Force, which took over re-
sponsibility after substantial investigative work had been done, the
task force concerned with campaign financing began with about 70
different matters that appeared suspicious but about which little
was known. To an extent greater than in the other task forces, its
staff had to make difficult choices about which investigations should
be given priority. The possible illegal acts fell into two broad cate-
gories: (a) campaign law violations resulting from illegal contributions
by corporations and unions, and failure to comply with contribution
reporting requirements; and (b) bribery and other violations grouped
into a so-called quid pro quo category, i.e., allegations of a dependent
relationship between contributions and Government decisions by the
Administration. The campaign law allegations had more substance and
more initial evidence with which to begin. In addition, since investiga-
tion of these would commence with the larger contributions, they also
would seem to possess the greater potential for a quid pro quo
relationship.

Accordingly, the campaign financing task force focused originally
on many political contributions shown on various available lists of
contributors. The task force attorneys realized that few such investi-
gations had been successful in the past and felt that time demands
dictated a course that would generate witness cooperation in order
to break the barrier of prior witness silence. They also knew that
locating the source of funds that large organizations used for contribu-
tions might be an impossible task. The Special Prosecutor soon an-
nounced his policy to afford prosecutorial consideration in the form
of reduced charges against those illegal contributors who volunteered
information to WSPF. The subsequent early disclosure by several
corporations that they had made such contributions, prompted in
part by their awareness that such activity was being investigated,
helped the task force in its subsequent dealings with witnesses who
realized that full-scale investigations were actually in progress.
Eventually the task force was able to investigate several hundred
different allegations relating to campaign financing, including quid
pro quo matters, although most of the inquiries failed to develop
evidence that would warrant criminal charges.

Sometimes facts obtained by WSPF in the course of its own in-
vestigations or from other sources would point to the possibility of
criminal conduct in areas either outside WSPF's jurisdiction or periph-
eral to its chief concerns. The Special Prosecutor’s charter gave him

23

broad jurisdiction to investigate and prosecute “all offenses arising
out of the 1972 Presidential election for which the Special Prosecutor
deems it necessary and appropriate to assume responsibility, allega-
tions involving the President, members of the White House staff,
or Presidential appointees,” and other matters. But for WSPF to
investigate every allegation falling within those terms would have
spread the office’s resources too thinly to achieve significant results,
and it seemed unnecessary for WSPF to look into matters which
established law-enforcement agencies could handle without apparent
risk of the higher-level interference which had led to the Special
Prosecutor’s appointment. Accordingly, some relatively routine
matters were referred by mutual agreement to the Criminal Division
of the Justice Department, the Internal Revenue Service, or other
agencies, after initial inquiries had shown that there was no reason,
other than a literal reading of the Special Prosecutor’s charter, for
WSPF to handle them.

After an inquiry into the role the FBI had played in the Watergate
investigation prior to his appointment, and in order to take advantage
of the Bureau’s nationwide organization and facilities, Cox decided
to request the continued assistance of the Bureau agents who had
worked on the Watergate case. A decision not to establish his own
investigative staff was made after Cox had determined that the FBI
agents doing the day-to-day work in the Watergate case had appar-
ently done conscientious jobs. The Special Prosecutor agreed with the
Attorney General that the WSPF requests for investigative help in all
task force areas would be sent directly to the FBI and the Bureau
reports would come directly to WSPF, bypassing the Attorney Gen-
eral’s office. Although the Bureau was not involved in some of the
investigations WSPF conducted, and played a small part in others,
its work in still others was extensive, involving in the aggregate 58
of its 59 field offices in the United States and several of its “legal
attache” offices overseas. Some investigative help also came from the
Internal Revenue Service, which audited financial records and assigned
agents to work with WSPF, primarily on campaign contributions
matters.

At the outset, arrangements were made for the Justice Department
to bring to WSPF’s attention any information it obtained that might
bear on matters under WSPF’s jurisdiction. Later, appropriate ar-
rangements for disclosure of tax information were made with IRS in
connection with campaign financing activities. The Senate Select
Committee made available some of the information its staff had ob-
tained except that received under grants of immunity from prosecu-
tion and testimony given in exceutive sessions of the Committee.
Individual Members of Congress provided information from time to
time as it was developed in investigations by their staffs or committees.
In addition to these official sources, WSPF received numerous letters

24

and phone calls from private citizens, many of them anonymous, with
information they felt bore on matters under its jurisdiction. These
unsolicited “tips” ranged widely in value and all received attention,
but most of them either provided no facts that could be checked or
provided facts which, when checked, left no reason to believe a criminal
offense had been committed. People with actual knowledge of matters
under investigation usually had to be invited to tell the prosecutors
what they knew; not surprisingly, many of those who knew enough
to provide useful information and realized the value of their knowledge
were unwilling to come forward because of their own possible involve-
ment in criminal or otherwise questionable activities, or because they
distrusted the prosecutors 7 motives.

THE INVESTIGATIVE PROCESS

In conducting its investigations, WSPF used most of the ap-
proaches and techniques commonly used in Federal investigations of
“white-collar” and organized crime. These kinds of crime, unlike the
“street crimes” which receive more public and official attention, are
effectively invisible. They involve conspiracies whose facts are known
only to their participants, all of whom have good reasons to maintain
secrecy; and their individual victims, if any, usually do not realize
that they have been victimized. Thus, the information that investiga-
tors and prosecutors need in such cases must usually come from people
who were themselves involved in the criminal activities under inquiry.
Generally this information can come from only three possible sources:
the statements of insiders or participants who for some reason are
willing to disclose their knowledge, documents which corroborate such
statements or provide further information, and the fruits of surveil-
lance, including court-authorized electronic eavesdropping. The first
of these sources is especially important because it often leads to the
other two. Documents have to be identified, or their meaning ex-
plained, by witnesses who must be persuaded to be helpful. Surveil-
lance, of course, can be undertaken only when the investigator knows
what or whom to watch, and he can normally learn this only from wit-
nesses or documents; electronic surveillance requires a warrant which
must be based on such information.

As an additional characteristic in “white-collar” investigations of
Government officials, corporate officers, and others highly placed in
organizations, the subjects frequently can “track” the progress of the
inquiry. For example, corporate or agency employees interviewed by
prosecutors are sometimes accompanied by lawyers who represent
their employers and whose presence may therefore inhibit the witness-
es from being cooperative or truthful. In other cases, such employees
may report back to their supervisors on the interviews. These condi-

25

tions make it easier for the officials of any organization to tailor their
own accounts of events to what they know the prosecutors know, and
to conceal criminal conduct more effectively if they are so inclined.

The need for information from “insiders” and the subjects’ ability
to keep track of the investigations were elements which WSPF cases
had in common with the “white-collar” and organized crime cases
other Federal prosecutors handle. But WSPF’s investigations were
also affected by conditions that are not ordinarily as significant, if
they appear at all, in other cases involving “white-collar” crime.

— Much of the evidence needed for investigations and prosecutions
was held by the White House and proved exceedingly difficult to
obtain. Tapes and documents relating to Presidential conversations
were obtained only after extensive litigation, and production of other
documents was delayed and uncertain. As a result, in the Watergate
investigation the prosecutors initially were forced to unravel con-
flicting statements of witnesses to a greater extent than they would
have otherwise, and to devote considerable time to litigation over
tape recordings. In other investigations, difficulties in obtaining
evidence from the White House delayed the full examination of such
evidence until relatively late in WSPF’s lifetime. Had such evidence
been available sooner, some investigations might have been closed
earlier and others might have resulted in the filing of additional
charges. On the other hand, public attention to WSPF’s efforts to
obtain documents might have made their wholesale destruction less
likely. And, of course, the tape recordings of Presidential conversa-
tions, when they were finally obtained, were extraordinarily valuable
as evidence corroborating what witnesses had told the prosecutors.

— The public importance of most of the matters WSPF investi-
gated meant that others, notably committees of Congress and plain-
tiffs in civil suits, had interests as strong and legitimate as WSPF’s in
uncovering the same facts for their own different purposes. Although
other criminal investigators and prosecutors, both State and Federal,
deferred to WSPF in cases where they had been looking into the same
matters, this kind of deference could not be expected of Congressional
committees and private litigants, whose purposes might be harmed by
delaying their own inquiries. In one respect, these parallel inquiries
were helpful, as they provided valuable information to the prosecutors,
especially as WSPF’s work was beginning. In other respects, they may
have unavoidably hindered the prosecutors’ inquiries by inhibiting
some witnesses from telling the prosecutors what they knew. Prior
public testimony of key witnesses may have helped other witnesses
and suspects fabricate their own versions of events. Some people may
have feared that disclosures to WSPF would lead to their being con-
tacted by other investigators. People who had testified in self-serving
ways in other forums may have been inhibited from giving WSPF
more accurate information because of their prior statements. And the

credibility of prosecution witnesses at trial could sometimes be chal-
lenged by pointing to inconsistencies in their statements to other
investigators.

—The interest of the news media in WSPF’s work and the cases it
produced created potential problems. Some witnesses may have been
reluctant to provide information for fear that they would find them-
selves testifying in a celebrated trial or portrayed in the press as having
been involved in a major scandal; their chances of remaining anony-
mous were considerably less than those of most witnesses in more
traditional investigations. Furthermore, press attention to WSPF’s
work created ever-present dangers that errors in the conduct of in-
vestigations, including “leaks” of information, might be exploited by
people who wanted to halt WSPF’s work. There was the additional
and unusual problem of disclosures by people associated with witnesses
and potential defendants, for the purpose of generating publicity for
tactical advantage or to bring public pressure on WSPF to take a
particular action. However, publicity may also have worked to WSPF’s
advantage insofar as it may have influenced some witnesses to appear
cooperative by letting the prosecutors interview them, furnishing office
calendars and similar records, and testifying before the grand jury.
While at times cooperation was more apparent then real, the access it
provided to such people, whose hostility otherwise might have en-
gendered a lack of cooperation, did contribute to the resolution of
matters being investigated.

— Unlike most prosecuting agencies, WSPF required continuous
public support for its work. Political pressures had led to the creation
of the office, and other political pressures could destroy it. Its investi-
gations jeopardized some of the most powerful people in the country,
who could be expected to try to protect themselves and their associates
by publicly challenging and encouraging others to challenge WSPF’s
impartiality and the motives of the people who were providing in-
formation to the prosecutors. For example, the credibility of John
Dean, one of the most important witnesses in the Watergate cover-up
case, was attacked publicly by high officials during the course of his
cooperation with WSPF. The prospect of such denunciation, or simply
of incurring the hostility of such powerful people, may have affected
other witnesses’ decisions about telling the prosecutors what they
knew.

The need to retain public support probably made WSPF more cau-
tious and restrained in its methods than a prosecuting agency would
normally be in an investigation. For example, WSPF never used
“planted” informants or electronic surveillance, although such tech-
niques, often used in “white-collar” and organized crime investigations,
might have been productive on a few occasions. The use of such tech-
niques, though legally proper, might have damaged WSPF’s credibility
with the public whose support it needed, since they were at least

27

superficially comparable with the similar techniques used illegally in
the criminal conspiracies the office was investigating.

As noted above, apart from the significant differences dictated by
these unique circumstances, WSPF conducted its investigations in
ways similar to those used by Federal prosecutors in “white-collar”
and organized crime cases. Because of the large numbers of people
involved and the complexity of the cases, this process is usually far
more laborious and time-consuming than the investigation of most
other types of crime. Thus, while experience, instinct, and luck play
a part, such investigations are most often characterized by careful
planning, ongoing strategic decisions, persistence, attention to detail,
the amassing of large quantities of information, and the investigators’
ability to obtain information from people who often have an interest
in withholding it. The way in which witnesses are contacted, and their
cooperation is sought and maintained, becomes an important factor
in such cases.

WSPF contacts with witnesses, as in most Federal investigations,
occurred in three basic settings: interviews by agents of the FBI
pursuant to WSPF requests for assistance, interviews by attorneys
in WSPF’s offices, and grand jury appearances. Which of these vehicles
was used in any particular instance depended on a variety of possible
considerations.

When a bare allegation was received, showing a possible violation
of criminal law but lacking specifics, the FBI was often asked to make
initial inquiries through the appropriate field office to obtain further
details; its findings would be used in deciding whether to continue
the investigation. The FBI was also asked to pursue leads arising from
witnesses’ statements to the prosecutors or the grand jury, and to
seek corroboration of material facts supplied by some witnesses. For
example, agents checked telephone, hotel, and airline records to learn
whether they supported witnesses’ accounts of phone calls and travel.
In some cases, the FBI was also asked to provide investigative help
between the time of indictment and trial, when prosecutors cannot
use the grand jury process for investigative purposes.

In some nationwide investigations, such as that of dairy industry
campaign activities, the initial information available strongly sug-
gested that criminal activity had occurred and that the participants
were endeavoring to prevent discovery of the full facts. It was impor-
tant that such inquiries be centrally conducted, so that each person
contacting witnesses would be as fully informed as possible about
every document, every witness’ prior statements, and the attitudes
and propensities of each potential witness. Here, too, immediate
follow-up and selective use of the grand jury can become crucial. In
such situations, prosecutors normally assume the interrogator’s role,
with only selective use of another law enforcement agency such as the
FBI. It is important for the prosecutor, and perhaps ultimately the

28

grand jury, to hear witnesses directly and question them with knowl-
edge of all information already available. This contrasts with the
normal FBI procedure of having witnesses interviewed by agents
stationed in the field offices covering the respective areas where they
reside. In addition, the FBI lacks the subpoena power available to the
prosecutor through the grand jury. Accordingly, in some of the nation-
wide inquiries WSPF attorneys interviewed most of the witnesses them-
selves rather than asking the FBI to do so. In a few instances, most
notably the Watergate investigation and the inquiry into the 18%
minute tape gap, where most witnesses resided in the Washington
area, the same group of FBI agents worked continuously and closely
with WSPF attorneys who used all available settings for questioning
witnesses.

When the prosecutors learned, from the FBI or other sources,
facts indicating that a witness might have information relevant to an
investigation, they commonly interviewed such a witness in WSPF's
offices to determine whether the facts warranted further investigation.
Office interviews were also used in pursuit of investigative leads which
seemed likely to have value in eventual prosecutions. Another func-
tion of office interviews was in preparing cooperative witnesses for
grand jury or trial testimony. Office interviews also had value in
letting some uncooperative witnesses know how much the prosecutors
had learned about their activities; this knowdedge might affect their
attitude towards cooperation.

When appropriate, people interviewed by WSPF attorneys were
informed of their rights in connection with the interview — that they
were not required to participate in the interview 7 , that they could end
the conversation at any time, and that they could consult a lawyer and
bring him with them (as most did). These warnings resemble those
required by the Supreme Court's decision in Miranda v. Arizona when
the police arrest someone suspected of a crime. While the law only
requires that such warnings be given in certain situations, the prose-
cutors generally tried to err on the side of caution by giving the
warnings even when not legally required to do so. When an investiga-
tion had progressed substantially, the warnings were almost always
given to each witness.

A witness was called to appear before the grand jury if the prose-
cutors believed that such an appearance was the most reliable method
of obtaining, or attempting to obtain, truthful testimony. Apart from
the basic purpose of bringing relevant evidence to the grand jury's
attention, grand jury appearances produced a verbatim record of the
witness' sworn testimony which could serve as a basis for further
inquiries or could be used, if necessary, to challenge any later incon-
sistent statement. In addition, since deliberately false testimony
could lead to perjury charges, grand jury witnesses had a strong in-
centive to be truthful.

29

591-439 0 - 75 -3

A grand jury appearance also gave the prosecutors a chance to
see what kind of impression a witness made on a group of citizens
similar to those who would serve on a trial jury — his demeanor,
nervousness, certainty or uncertainty of recollection, and general
credibility. Although most grand jury witnesses appeared at the pros-
ecutor's request or under subpoena, others did so at their own request.
Any potential defendant who wanted to give the grand jury his version
of the facts was invited to do so, whether or not the prosecutors would
have called for his testimony on their own.

When appropriate, before giving testimony, grand jury witnesses
were advised of their rights — to decline to answer any question on
grounds of self -incrimination, to have an attorney, and to consult
with him outside the grand jury room at any time during the question-
ing. As in all Federal grand jury proceedings, witnesses were not
entitled to have their lawyers physically present in the grand jury
room while testifying. Any grand jury witness who informed the
prosecutors that he would invoke his Fifth Amendment privilege
against self-incrimination regarding all substantive questions was
excused from testifying, provided that his lawyer informed the
prosecutors in writing of his position. The grand jury would not be
informed of the witness' intent to assert his privilege unless its mem-
bers specifically insisted upon his appearance; this happened rarely.

The prosecutors worked with some witnesses in all three ways —
first having an FBI agent interview them, later interviewing them in
WSPF's offices, then questioning them under oath before a grand
jury — and with other witnesses in only one or two. Any such contacts,
in any investigation, involve a danger of letting the witness, partic-
ularly a hostile one, learn what the prosecutors already know and
what more they want to find out. Thus a witness may obtain more
information in an interview or grand jury appearance than he pro-
vides. If he is a potential defendant or wants to protect one, such
information can help him fashion a version of the facts which will
sidetrack the prosecutors' investigation without being so implausible
as to raise suspicions. For example, in an office interview the prose-
cutors might ask a witness what had happened at a particular meeting
he had attended. Realizing that they knew of that meeting, the witness
could feign forgetfulness and avoid telling them anything of value.
After the interview, he would be able to “consult his records," and
perhaps also consult others who had attended the same meeting, and
concoct an account that would work to his or their advantage.

Sometimes a witness would decline a request to be interviewed
or to testify before the grand jury because he believed the information
he might provide could be used as evidence against him in a later
prosecution. Such a situation, which prosecutors commonly face,
requires a determination whether to give assurances to the witness
in return for his cooperation. Some witnesses were satisfied merely

30

to know that the prosecutors did not view them as potential
defendants and had no present reason to expect to charge them. Others
insisted on being assured that their statements in office interviews
would not be repeated later as direct evidence against them, although
the witnesses understood that investigation of others based on the
office statements might result in the obtaining of evidence that
could be used against the cooperating witness. In some instances,
witnesses insisted on what amounted to informal use immunity — a
promise that neither their statements nor evidence obtained as a
result of them would be used against them. And in rare instances,
witnesses would insist that WSPF apply to the District Court for a
formal grant of use immunity.

About 30 of the hundreds of witnesses who were interviewed by
the prosecutors or testified before the grand jury received complete
use immunity, either formal or informal, and only a few of them
might have been prosecuted otherwise. The prosecutors tried to
avoid giving such immunity when they could not be sure how their
cases would develop. If the assurances given were too broad, a valid
future prosecution might be foreclosed; if they were not broad enough,
valuable information might not be obtained from the witnesses. In
many instances, the prosecutors had little basis to choose which of
these risks to run. In order to determine as accurately as possible
the appropriateness of making any commitment to a witness who
requested one, the prosecutors often followed the common practice
of asking the witness’ counsel to make an offer of proof — a statement
in broad hypothetical terms of what the witness would be able to
tell them. This statement gave them a better basis for deciding
whether the witness’ information was important enough to their
overall investigation to justify whatever assurances he was seeking.

Another reason for the prosecutors’ conservative approach to
immunity, particularly as to important Government agency actions,
was the irrelevance of the practice, often followed in organized crime
cases, of using a person’s rank in an organization as a principal stand-
ard in deciding whether to immunize him — for example, giving
immunity to street-level participants in criminal activity in order to
obtain their testimony against the major figures. This practice, which
has many variations in individual cases, makes sense in dealing with
members of continuing hierarchial organizations whose major activity
is crime. But a “low level” employee in an organization like the White
House staff is a relative concept — anyone in such a position has a great
deal of power. It was felt that they should take some responsibilit}Hor
their actions; “following orders” should not be an absolute defense
for criminal conduct.

When a witness seeking immunity appeared to bear major respon-
sibility for criminal conduct, and the prosecutors believed they had
enough evidence to obtain his conviction, they rejected the choice of

31

immunity and instead pursued a course of plea bargaining. This
involved telling the witness the entire range of charges he might
some day face, and offering to reduce this total range in return for his
plea of guilty to an appropriate charge and cooperation with the inves-
tigators. This course would provide the prosecutors with the guilty
man’s future testimony and make him more credible as a trial witness
against other defendants than he would be as a man who had traded
his testimony for complete immumity from his own guilt. Moreover,
plea bargaining is probably a better basis than a grant of immunity
for assuring that a witness does not fabricate information he thinks
the prosecutors “want to hear” in his offer of proof, since he would
expect the offer to result only in a negotiated guilty plea rather than
in his freedom. Most important, it avoided the unfairness of per-
mitting one guilty of serious misconduct to avoid all liability.

The use of plea bargaining rather than immunity involved delays
in some investigations — instead of immunizing a witness and getting
his immediate cooperation, the prosecutors had to negotiate with his
counsel over an appropriate charge to which he would plead guilty
before his testimony would become available. But the result of the
practice was that no one whom the prosecutors could prove had
major responsibility for criminal conduct was immunized on WSPF’s
initiative.

In giving assurance to witnesses in return for their cooperation,
whether those assurances were limited to the nonuse of their actual
statements as evidence against them, or as broad as a formal or
informal grant of immunity, or embodied in a plea agreement, the
prosecutors always reserved the right to cancel the agreement or to
bring charges of perjury or false statements to criminal investigators
if a witness lied to them. While witnesses often failed to provide as
much evidence as the prosecutors might have expected from them,
none were charged with such offenses.

When an investigation resulted in a finding that no criminal
activities could be detected, it was closed without the filing of a formal
memorandum. This occurred most often in the campaign contri-
butions area where by far the largest number of WSPF’s investiga-
tions occurred and where the prosecutors started with the least
information. Where the initial inquiry showed possible criminal
activity but little promise of successful identification of the particular
individuals involved, closing was also at the task force level, some-
times with the filing of a memorandum indicating the reasons for the
closing. Copies of such memoranda were sent to the Deputy Special
Prosecutor, through whom all investigative requests to other agencies
had been routed. In task forces that handled relatively few separate
investigations, matters showing little promise were normally closed
through consultation with the task force leader, the Deputy Special
Prosecutor, and on many occasions the Special Prosecutor. No major

32

matter that had produced significant evidence of criminality short of
prosecution potential was closed without the approval of the Special
Prosecutor or his Deputy. A closing was never final; the investigation
could always be reopened (subject to the statute of limitations) if new
evidence turned up. But in practice this rarely occurred.

The day-to-day work in investigations was done within WSPF’s
five task forces. Each task force leader had considerable discretion in
choosing investigative techniques and strategy. Progress, priorities,
and thoroughness of the task forces were monitored by the Special
Prosecutor and his Deputy through regular meetings with each task
force’s lawyers and other meetings with the heads of all task forces.
These meetings were a means of maintaining communications among
task forces, shifting manpower as needs changed, and keeping the
Special Prosecutor and his Deputy informed of the course of all
investigations. In the early months of WSPF’s work, it was routine
for each task force to inform his colleagues in other task forces of the
witnesses who were coming in to be interviewed or to appear before
the grand jury, so that each investigating attorney who needed to
talk with a particular witness would have a chance to do so. This kind
of coordination became less frequent as time passed and the investi-
gations became more distinct from one another. However, grand jury
time continued to be scheduled centrally and decisions about bringing
charges or accepting plea bargains were cleared with all the task forces
that had been investigating activities or persons relative to the
proposed course of action. People who pleaded guilty to charges and
agreed to disclose to WSPF what they knew about all matters under
investigation were interviewed by members of each task force to find
out what they could add to the evidence that each was gathering.
This coordination process involved serious problems among the task
forces. Each had its own priorities; each had its demands for witness
interview timing and precedence; and each relevant investigating
group had its own views of the propriety of a proposed immunity, a
proposed plea of guilty or a proposed initial criminal charge against
a subject.

If an investigation led to findings that might form the basis of
criminal charges against anyone, the prosecutors continued their
inquiries with a view to shaping the case they expected to prove
against such an individual. This involved obtaining the most accurate,
complete, and detailed information they could get on the events
which constituted the crime, using counsel’s office for legal research
to determine what charges the evidence most clearly described, and
making a charging decision in consultation with others in the office
and with the Special Prosecutor’s approval.

33

CHARGING AND DISPOSING OF CASES

Fulfilling the prosecutor's obligation to investigate all eases fully
and fairly requires not only thorough investigation and analysis of the
facts, but also the exercise of care and judgment in deciding what, if
any, criminal charges should be brought. In deciding whether to bring
charges, prosecutors often take a great many factors into account.
While there were similarities in the processes and criteria by which
the various WSPF task forces made their recommendations and the
Special Prosecutor made his decisions, there were also substantial and
important differences in the ways WSPF handled each of the cases
within its jurisdiction. Among other variables, these differences re-
sulted from the unique facts of each case, the varying laws applicable
to the conduct in question, the nature and quality of the evidence
available to the prosecution, and the differing circumstances of each
potential defendant. To discuss these factors fully would require the
unfair disclosure of much confidential information obtained during the
office's investigations. Such disclosure might seriously violate both the
rights of those who were not charged with any crime and the legal and
ethical obligations of prosecutors to protect the rights of the accused.
Hence, it must be noted that the discussions of investigating, charging,
prosecuting, and plea-bargaining practices contained in this report
can in no sense be interpreted as applying fully to any single case or
describing completely the way a particular case was handled by
WSPF. More to the point, they cannot be considered as statements of
uniform policy on the part of WSPF, the Department of Justice, or
any other prosecuting entity.

The initiative for criminal charges in “white-collar" cases typically
comes from prosecutors rather than from victims making complaints.
During and after the evidence-gathering process, the decision normally
involves legal research into the applicability of particular criminal
statutes to the facts and the development of a theory of the case to
determine which violations are most clearly demorstrated by the evi-
dence and what kind of additional evidence is required. The office
review undertaken before seeking an indictment in the Fielding break-
in case provides an example of this process. The evidence showed that
the potential defendants had authorized, planned, and conducted a
surreptitious entry into Dr. Fielding’s California office in an effort to
photograph psychiatric records of Daniel Ellsberg, his former patient,
who was then facing charges in connection with the disclosure of the
“Pentagon Papers." This break-in, the evidence indicated, was part
of a larger plan to damage Ellsberg's reputation by obtaining and
releasing derogatory information about him. However, deciding on the
proper charge proved no easy matter.

Although these acts obviously constituted burglary, none of the
Federal burglary statutes, which are aimed at protecting Federal

34

property, banks, and interstate commerce, as opposed to private
premises, seemed to be applicable. Another law, prohibiting con-
spiracy in the District of Columbia to commit an offense in another
state, as defined by the other state’s law, required that the planned
action be an offense under both District of Columbia and the other
state’s law, and the burglary and trespassing statutes of California
and the District of Columbia seemed too dissimilar to meet this
requirement. A charge of obstructing justice was also considered.
Such a charge would have been based on the theory that the break-in
was part of a plan to impair Ellsberg’s right to a fair trial by spreading
damaging information about him. Although one of the defendants
later entered a guilty plea to this offense, WSPF decided not to rec-
ommend this charge to the grand jury for several reasons. In addition
to difficulties of proof as to some defendants, an obstruction charge
might have put WSPF in the position of seeming to defend Ellsberg’s
conduct in the course of the defendant’s trial, a position which the
prosecutors felt would unnecessarily complicate their task and raise
irrelevant issues. Another problem with an obstruction charge based
on the known facts was the possible future consequence of inhibiting
public officials from m&king statements on matters of public impor-
tance when such matters were also related to judicial proceedings. The
prosecutors also considered a charge of conspiring to defraud the
Government on the theory that the defendants had misapplied
Government funds and facilities in the anti-Ellsberg effort of which
the break-in was a part. But this theory was rejected, as it would have
required proof of actions other than the break-in and would have
constituted an application of the conspiracy statute in an unusual
way that might have been confusing.

All these options involved legal or evidentiary difficulties that the
prosecutors saw no reason to face, given the availability of a charge
which seemed clearly applicable — conspiring to violate Dr. Fielding’s
Fourth Amendment constitutional right to be free from unauthorized
governmental intrusion on his premises. Proof of this charge required
only a showing that the defendants had authorized, planned, and con-
ducted the break-in, and that they had thereby intended and agreed
to engage in conduct whose effect was to deprive Dr. Fislding of rights
clearly protected by the Fourth Amendment. The choice of this
charge involved considerable research on the requirements of the
statute (18 U.S.C. § 241) in proving each defendant’s intent to violate
the Fourth Amendment, which the prosecutors decided could be met
by the evidence they would present to the jury.

Another choice the prosecutors often faced in deciding what indict-
ments to seek was whether to ask the grand jury to bring perjury
charges against people who appeared to have testified falsely before the
grand jury or other bodies, such as Congressional committees. Al-
though such deception had occurred often, many of the possible

35

charges could not be brought because recent judicial interpretations
of the perjury statutes have held that an evasive or misleading state-
ment, even if made with the obvious intent to deceive the questioner,
does not constitute perjury if it is literally true. In Bronston v. U.S.,
the leading Supreme Court decision on this point, the questions and
answers were as follows:

Q: Do you have any bank accounts in the Swiss bank . . . ?

A: No, sir.

Q: Have you ever?

A: The company had an account there for about 6 months, in

Zurich.

In fact, there was evidence that the witness previously had a Swiss
bank account of his own, and his non-responsive answer to the second
question was apparently meant to conceal this fact. But the court
held that the answer did not constitute perjury since it was literally
true; to commit perjury, the witness would have had to give a respon-
sive answer which was willfully false.

Because of the exacting demands of a perjury prosecution, even
when the prosecutors were sure a witness had intentionally misled
them in testifying before the grand jury, they had to search for a
sequence of specific questions and answers that met the crime's
narrow definition in order to bring a legally sustainable charge. Many
of the questions and answers constituting the basis of possible perjury
charges contained qualifying phrases and ambiguities which made it
difficult to show that this definition had been met. While the prose-
cutors, when questioning witnesses before the grand jury, were aware
of the requirements of such a charge and tried to frame precise ques-
tions and insist on responsive answers when they suspected a witness
was trying to deceive them, the main purpose of the questioning was to
obtain information, not to create perjury cases. In addition, the
prosecutors often did not know enough facts at the time they ques-
tioned such witnesses to recognize that their testimony was mis-
leading. The same problems applied to possibly perjured testimony in
other forums, such as the Senate Select Committee.

After deciding what charge or charges would be appropriate, the
prosecutors prepared the charging document, either an indictment to
be voted on by the grand jury or an information to be filed in court
by the Special Prosecutor. An information can be used instead of an
indictment when only misdemeanors are charged, or, in felon}^ cases,
only if the defendant waives his right to have the matter presented to
a grand jury. In accordance with common practice, WSPF used
informations instead of indictments in felony cases when discussions
with defense counsel had resulted in a defendant's decision to plead

36

guilty to an agreed-upon charge at the time the information was
filed in court. Having made such an agreement, the defendant no
longer needed the protection afforded by grand jury review of the
evidence. When such a plea agreement was made after evidence
regarding a defendant had been presented to a grand jury, the
prosecutors usually explained to the grand jurors what the terms
of the agreement were and why it had been made.

In felony cases, after hearing the evidence and the advice of
prosecutors on the applicable law, grand juries deliberate and vote on
the proposed indictments the prosecutors have presented to them.
The law requires that at least 12 of the 23 grand jurors vote to return
an indictment, and the grand jurors who heard evidence from WSPF
were instructed by the court, like members of other grand juries in
the District of Columbia, to concur in an indictment only if convinced
by the evidence that the defendant was guilty of the crime or crimes
charged — that is, that the evidence, uncontradicted and unexplained,
would warrant a conviction by a trial jury.

Thus the indictment constitutes the grand jury’s finding that the
evidence is sufficient to justify bringing a named person or persons, or
an organization, to trial on one or more specific criminal charges.
The standard of proof required for a grand jury to vote an indictment
is lower than the absence of reasonable doubt needed for a trial jury
to convict a defendant, because an indictment is only a formal pre-trial
charge, while a conviction after trial subjects him to criminal penalties.
Moreover, a grand jury indictment requires the concurrence of only
a majority of the grand jurors, while a conviction requires the unani-
mous vote of a trial jury. Despite these different standards of proof,
WSPF, like many Federal prosecuting offices, attempted to approach
a standard of seeking indictments only when all the available
evidence, including a defendant’s explanations, seemed likely to
produce a guilty verdict at trial.

One reason for making charging decisions on the basis of an evi-
dentiary standard higher than that required by law is to avoid sub-
jecting anyone to the publicity, expense, and inconvenience of de-
fending himself against a charge that the prosecutors do not believe
will probably be sustained. Additional reasons for WSPF’s adopting
this higher standard were a desire to maintain its credibility with
witnesses and subjects of investigation and the confidence of the
public, and to insure that the office exercised restraint and avoided
any possible abuses of its power.

Thus, prosecutors’ decisions to charge involve consideration of
more than the sufficiency of the evidence as they and the grand
jurors view it. In assessing the likelihood that the evidence will
convince a jury of the defendant’s guilt when presented under the

37

conditions of a trial, prosecutors recognize that their familiarity with
all the facts of a case and their assessment of the credibility of wit-
nesses cannot necessarily be transferred to a trial jury, where evidence
is strictly limited by trial rules and cross-examination can leave
unpredictable impressions. Accordingly, WSPF’s attorneys tried to
anticipate the problems of a trial setting and the influence of that
setting on a juror’s perception of each case’s strength.

The problem of witness credibility, for example, is affected by
jurors’ perceptions of what kind of “deal” the witness obtained from
the Government. Defense attorneys often characterized such a plea
bargain as a reward for testimony favorable to the prosecution, rather
than the witness’ admission of guilt and agreement to testify truth-
fully. As noted above, this was a major reason why WSPF was reluc-
tant to seek immunity for any important witness and tried to insist,
when plea bargaining with any such witness, on a guilty plea which
jurors would perceive as an admission of guilt for conduct related to
the charge against the defendant in whose trial the witness would
be testifying.

A related problem arises in most “white-collar” and organized
crime conspiracy cases. Those who eventually become Government
witnesses often have committed perjury, have made false or misleading
public statements earlier in the investigation, or have been convicted
of crimes in the past. Defense strategy necessarily focuses on such
facts as weaknesses in the Government’s case. Thus, in contrast
to a robbery case, for example, in which the jury must decide between
the complainant’s testimony and the defendant’s version (if he
testifies), “white collar” prosecutions normally require two or more
witnesses for the Government, or one principal witness whose testi-
mony is corroborated by circumstantial evidence or by documents.
In some cases, where the principal witness’ version contrasts sharply
with the defendant’s narrative, documentary evidence also may be
sought to show that the defendant’s version is false. In a few of
WSPF’s cases, problems of witness credibility, combined with lack
of documentary affirmation, led to decisions not to prosecute. In others,
they affected the choice of possible charges against a defendant.

Another tactical consideration involved the use of the Federal
conspiracy statute (18 U.S.C. § 371) in cases involving agreements
among people to violate Federal law and their actions taken pursuant
to such agreements. Conspirators are normally tried together in the
same proceeding, and, once the Government has demonstrated by
prima facie evidence that a conspiracy existed and that certain persons
had joined, the acts and statements of each such conspirator in further-
ance of the conspiracy’s goals constitute evidence against any member
of the conspiracy. Thus, when the evidence indicated that a conspiracy

38

had existed and had resulted in provable actions, the prosecutors
brought appropriate conspiracy charges . 1

Once the prosecutors had decided that their prospective case
against a defendant was strong enough in factual, legal, and tactical
terms to justify charging him, other factors sometimes came into play.
Historically, prosecutors have had broad discretion in deciding
whether to file charges in criminal cases, and have taken into account
factors other than those the law requires them to consider. The
American Bar Association has noted some of these in its Standards
Relating to the Prosecution Function , which provide in part:

The prosecutor is not obliged to present all charges which the
evidence might support. The prosecutor may in some circum-
stances and for good cause consistent with the public interest
decline to prosecute, notwithstanding that evidence may exist
which would support a conviction. Illustrative of the factors which
prosecutors may properly consider in exercising this descretion
are:

(ii) the extent of the harm caused by the offense ;

(iii) the disproportion of the authorized punishment in relation
to the particular offense of the offender;

(iv) cooperation of the accused in the apprehension or convic-
tion of others.

For the most part, and for reasons similar to those which dictated
a conservative approach to immunity, these discretionary factors were
important only in reducing charges as part of an agreement whereby
a defendant would enter a guilty plea. In a few cases, however, con-
siderations such as a defendant’s health resulted in decisions not to
prosecute at all. In a few campaign contribution cases, in addition to
individual factors present in all cases, potential defendants had relied
on the advice of counsel or on prior explicit non-enforcement decisions
by Government agencies in concluding that their activities had been
lawful, and the prosecutors decided not to charge them because their

1 Over the years, many lawyers and commentators have criticized the Federal
conspiracy laws and the rules of evidence involved in their use at trial. Most of
the criticism focuses on use of the conspiracy concept in factual situations where
a purported agreement was not followed by enough action to warrant such a
strong criminal sanction, or where the so-called agreement was based on facts
showing persons performing the same kinds of acts with little or no indication
that an agreement or plan among them had produced the similar actions. In the
conspiracy cases brought by WSPF, this potential for abuse was not present: in
each case, the prosecutors believed they could show that the defendants had made
an agreement and then had taken actions pursuant to the agreement. In some
investigations that showed an apparent agreement or a strong inclination to com-
mit acts that probably would have been criminal if carried out, the prosecutors
decided not to bring charges because there was little or no evidence that the plan
had actually been implemented.

39

violations seemed to rest upon honest misunderstandings of the law.
In addition, when a possible defendant had already been convicted
of a serious crime as a result of WSPF’s work and given a sentence of
imprisonment, it seemed undesirable and unnecessary to bring addi-
tional charges against him, particularly since any additional sentence
he might receive would probably run concurrently with the sentences
already imposed, having no effect on the actual period of
imprisonment.

The final charging decisions were always made by the Special
Prosecutor . 2 The process of reaching these decisions resembled the
practice of the Justice Department’s Cirminal Division in major
cases, involving more formal preparation and discussion than usually
takes place in most U.S. Attorney’s offices. Typically, the lawyers
who had handled the investigation prepared a prosecution memoran-
dum setting forth the facts of the case, the applicable law, the evidence
available for use at trial, any foreseeable defenses or weaknesses in
the case, and their recommendations; a draft indictment often ac-
companied this memorandum. Discussions with the head of the
task force, and perhaps with other lawyers within it, produced a
recommendation, or in some cases conflicting recommendations,
to the Special Prosecutor, which his Deputy, his Counsel, and some-
times other attorneys in the office then reviewed.

A WSPF departure from many Federal prosecutors’ normal
practice was to invite the prospective defendant’s lawyer to present
any arguments he might have against prosecution; in almost all cases
the lawyers accepted such invitations. This was done to make sure
that the Special Prosecutor’s final decision took into account any pos-
sible weaknesses in the case or defenses that might be raised after
the charges had been made public. On a few occasions, defense lawyers
succeeded in convincing the prosecutors that their clients would
probably be acquitted if they were charged, or that charges were
likely to be dismissed, thus preventing prosecutions of dubious merit.
The Special Prosecutor’s final decision often came after extensive
discussions within the office, and in a few cases, serious disagreements.

By the time the prosecutors were ready to make a charging deci-
sion in any case, they had usually had enough contact with defense
counsel to know whether the case was likely to go to trial or whether
the defendant could be expected to plead guilty in return for a reduc-
tion in his total liability. In the minority of cases where a plea bargain

2 Each of the three Special Prosecutors recused himself as to certain matters
which involved actual or possible conflicts of interest, delegating all decision-
making to his deputy or another member of the senior staff. For example, Special
Prosecutor Jaworski took no part in decisions on matters relating to the dairy
industry's activities because his law firm had been involved in litigation to which
the principal dairy cooperative had been a party and because he was personally
acquainted with some of the persons involved in the investigation.

40

was never expected or could not be agreed on by the parties, the
prosecutors began to prepare for trial after filing the charges. Trial
preparation involved the steps usually taken by prosecutors — deciding
which witnesses to call and in what order, deciding which of the attor-
neys would perform what functions during the trial, preparing and
arguing pretrial briefs and motions, preparing the opening statement
and other such actions.

In several cases, WSPF was faced with a pretrial problem which
prosecutors do not normally find difficult to resolve: meeting the
legal requirement of providing defendants with information claimed
to be necessary for their defense . 3 Apart from the efforts required to
locate all such material available to them and supply copies to defend-
ants, the prosecutors also faced defense contentions that they were
entitled to material held by Congressional committees and the White
House. These materials might be unavailable to WSPF — in the case
of the committees because they are part of a separate branch of
Government, in the case of the White House because of its adversary
relationship with WSPF during the Nixon Administration.

Fortunately, most Congressional committees agreed to supply
WSPF for this purpose with relevant material they held. In the one
case where such materials were not supplied, the trial judge ruled
that the disclosure requirement did not apply to the legislative branch.
No defendant was able to show that the White House withheld
exculpatory evidence.

PLEA BARGAINING

In the majority of cases, pretrial problems did not arise because
the prosecutors had reasons to expect pleas of guilty through agree-
ments negotiated with defendants and their lawyers. Plea bargaining
accounted for the disposition of most of the cases brought by WSPF,
as it does for the great majority of criminal cases throughout the
country.

Although the prosecutors never brought a charge they did not
believe they could support at trial, they were usually willing to
reduce a defendant’s total liability in return for his guilty plea to

3 Federal prosecutors are obliged to provide defendants with so-called “Jencks”
material — copies of certain relevant prior written or transcribed statements and
all such statements of government trial witnesses which are available to the
Government, and WSPF was required in some cases to supply these before trial.
Prosecutors are also required to supply defendants with “Brady” material — any
evidence they have which might show that a defendant was not guilty. Although
the office’s legal position has been that such material must be supplied only when
it is under the control of a non-adversary part of the executive branch, the prose-
cutors endeavored to go beyond the law’s requirements in assuring that defendants
received all relevant material.

41

an appropriate charge and cooperation in their investigations. If
they had not been willing to do so, many of the investigations would
not have progressed nearly as far as they did, and would have un-
covered far less evidence of criminal activity by fewer people. Often,
because of the nature of the matters being investigated, the only
hope of developing provable cases lay in obtaining the cooperation
of witnesses who had been involved in the same activities. In many
investigations the office initially developed evidence of one person’s
criminal liability, disposed of his case through plea bargaining in
return for his cooperation, and obtained from him additional evidence
which led to the prosecution of others. To achieve this result in a
reasonable amount of time, the only alternative to plea bargaining
with a suspect was not bringing him to trial but granting him
immunity.

Plea bargaining speeded up not only the investigative process
but also the process of public exposure of wrongdoing. A guilty plea
by a defendant in a major case involved his public admission of
conduct constituting one or more crimes and his agreement to tell
the prosecutors what he knew about the criminal activities in which
he had taken part and about the involvement of others. Thus it
advanced the public’s understanding of the extent of wrongdoing
in high places, weakened the often-heard assertions, particularly
in the Watergate case, that criminal conduct had been confined to
a handful of lower-echelon employees, and put other potential wit-
nesses and defendants on notice that their knowledge about or
involvement in crimes might soon be disclosed to WSPF, thereby
increasing their incentive to cooperate with the office.

By its nature, plea bargaining results in a less complete public
exposure of the evidence and the facts of a defendant’s conduct
than a trial would provide. But a criminal trial also has limited
value in bringing the facts of wrongdoing to public attention. The
evidence presented in a trial is usually only a part of the information
gathered in an investigation. The defendant’s right not to testify
can prevent the disclosure of many facts about his conduct. Many
kinds of misconduct discovered in investigations are not crimes and
therefore cannot be the subject of charges or trials. Because the
prosecutors are required to prove every charge beyond a reasonable
doubt, they limit their proof to the facts which they can show most
clearly and convincingly at trial, omitting other facts which might
be highly informative to the public but have little value as evidence
in a trial setting. Perhaps most important, a trial of a single person
or even several defendants can at best reveal only the evidence
related to their alleged criminal acts, without presenting fully all
available evidence of other peoples’ involvement in the same course
of conduct. In short, while a trial is usually an effective way to assess
a defendant’s criminal responsibility in a fair manner, it is not espeei-

42

ally effective in informing the public fully about his or anyone else's
conduct, nor is it meant to serve such a purpose.

Plea bargaining tends under some conditions to produce unfair
results — innocent people pleading guilty to avoid the uncertainty
and delay of a trial, people who could be convicted of very serious
crimes pleading guilty to much less serious offenses and receiving
minimal sentences. Such distortions sometimes occur in overloaded
urban court systems, where backlogs of pending cases force prosecutors
to make major concessions and the pressures of pretrial detention and
overburdened public defenders lead some defendants to plead guilty
although they would not be convicted at a trial. But such assembly-
line conditions did not apply to the cases WSPF handled. Certainly
there were no such pressures on defendants to plead guilty in WSPF's
cases. They were not jailed before trial unless they were serving
sentences for other offenses, and all were represented by private
attorneys who could give adequate attention to their cases.

However, there were substantial pressures on WSPF to plea
bargain. While the office had no backlogs of the sort that big-city
prosecutors commonly face, requiring them to dispose of large numbers
of cases on a daily basis, the campaign contributions task force in
particular had a heavy workload of matters to investigate and
prosecute, and was generally more reluctant than the other task forces
to devote the time and personnel that long and complex trials would
have required. Furthermore, the conduct involved in election-law
reporting violations was seen as less serious than that often found in
other areas of the office's investigations, such as obstruction of justice
and perjury. Some of the election laws whose violations the taskforce
uncovered have been unenforced for many years, in some cases because
of announced Justice Department non-enforcement policies. While the
task force knew that one of its important functions was to reverse
such policies and establish precedents for enforcing the campaign
laws, it did not seem fair to initiate such a policy change by imposing
on individual defendants the full burden of serious criminal liability.

Particularly in the area of campaign laws, evidence sufficient to
lead to convictions often would not have been obtained without plea
bargaining. Such investigations would require examining each
corporation's records in search of large cash diversions that might
indicate concealed contributions that had remained undiscovered in
years of continuous tax audits. The next step would be the difficult
if not impossible task of getting testimony from someone within the
corporation about the disposition of the cash. This process would
clearly take a great deal of time and effort, and the chances of its
leading to criminal charges and convictions in the foreseeable future
were uncertain at best.

These considerations led Special Prosecutor Cox to announce in
October 1973 a plea-bargaining policy aimed at encouraging corpora-

43

tions to volunteer the facts of any illegal campaign contributions in
the 1972 elections. The early public disclosure by American Airlines
that it had made an illegal contribution prompted Cox to issue such
an invitation to all corporations, promising that their voluntary dis-
closures would be considered in disposing of their cases.

In October, after some other corporations had made such dis-
closures, Cox announced that while such “volunteer” corporations
would be charged with making illegal contributions of corporate funds
(18 U.S.C. § 610), only the primarily responsible officer of each such
corporation would be charged, and that charge would be a one- count
misdemeanor violation of § 610. This policy resulted in guilty pleas
by 12 corporations and 10 corporate officers — the first group of con-
victions of corporate officers for consenting to illegal contributions in
many years.

The announcement of a policy aimed at inducing corporations
and their principal officers to make voluntary disclosure was coupled
with a warning that efforts by corporate officials to obstruct investi-
gations would be considered as aggravating factors in WSPF’s charging
and plea-bargaining decisions. In two cases, such obstructive conduct
resulted in the felony convictions of two executives for violating con-
tribution laws. And the “volunteer” corporations were required to
disclose the slush funds and bookkeeping methods they had used to
conceal their illegal contributions, thereby incurring possible liability
under the tax laws, the Securities and Exchange Act, and other regu-
latory statutes.

The nature of some other matters WSPF was investigating, and the
circumstances under which the prosecutors worked, also led to plea
bargaining. In the midst of a national crisis, WSPF felt an obligation
to complete its investigations and establish individuals’ criminal re-
sponsibility, or lack of responsibility, as quickly as was consistent
with thoroughness and fairness. Plea bargaining provided a means of
doing so. It also provided both prosecutors and defendants with a
chance to avoid the delays and uncertainties involved in trials. When
he approved agreements with defendants and their lawyers, the
Special Prosecutor was making largely subjective judgments that such
benefits were worth the price in terms of defendant’s reduced liability.
Whether those judgments were correct is a question on which people
m&y reasonably differ from case to case. On some of them, there was
serious disagreement within the office, resulting on one occasion in the
resignations of staff members.

The perceived benefits of plea settlements were accompanied by
prosecutors’ concerns that the resulting agreements reflected appro-
priately the nature and seriousness of such defendants’ conduct. This
concern required the Special Prosecutor to determine whether a pro-
posed disposition was adequate in two respects. First, he had to de-
termine whether the admitted guilt included a sufficiently serious

44

charge to allow the judge adequate scope for sentencing. Second, he
had to decide whether the plea would resolve the issue of the defendant’s
guilt or innocence of the underlying conduct which the evidence
established.

Tn resolving the first question, the Special Prosecutor was generally
prepared to accept a guilty plea to a one-count felony charge, most of
which carry a 5-year maximum sentence under Federal law, in any
case in which the defendant’s potential liability was greater. As to
the second question, the general practice was to attempt to require a
disposition which made clear that the defendant was guilty of at least
one of the principal charges that could be brought against him. Be-
cause of this desire to resolve issues of guilt, the office refused to accept
pleas permitted by the Supreme Court’s decision in United States v.
Alford, in which the defendant asserts his innocence at the time of
the plea 4 but makes an informed judgment that a guilty plea is more
advantageous to him than risking a trial. For similar reasons, with the
exception of one case in which an individual defendant’s earlier ad-
missions of campaign-law violations was seen as especially helpful in
encouraging others to come forward, no defendant was permitted to
plead nolo contendere. Such a plea does not acknowledge guilt, although
its legal effect is much the same as that of a guilty plea.

In some cases the Special Prosecutor 'was willing to accept pleas
to crimes which were less serious than felonies carrying 5-year sen-
tences, or which failed to fully resolve the defendant’s guilt or in-
nocence of the charges against him. 5 As noted above, it is difficult to
define precisely the bases of discretionary decisions to charge and to
plea bargain. However, among the considerations which led to the
acceptance of such pleas were the fact that the offense most ac-
curately defining the defendant’s conduct carried less than a 5-year
maximum penalty, the nature and seriousness of the defendant’s
criminal conduct, the belief that unique or unusual facts and cir-
cumstances explained or mitigated the seriousness of the conduct,
evaluation of the strength of the case if it should go to trial, the im-
portance to the prosecutors of the defendant’s cooperation and the
nature of such cooperation, and the existence of any representations
made to the defendant in the course of his dealings with the office.

4 Because the prosecutors did not think it proper to insist that a defendant
acknowledge greater degrees of moral guilt or criminal intent than the plea re-
quired, simply because he was admitting legal liability, and because the pro-
secutors did not believe they should become involved in any statement a defendant
might make outside of court, some defendants after entering guilty pleas made
out-of-court statements to the effect that they were innocent of wrongdoing.

5 The “volunteer” policy in corporate-contribution cases involved a blanket
exception to the general practice. In most cases the evidence w r ould have supported
a felony charge against the responsible officer, but because of his cooperation and
other factors discussed previously, he was charged with a “non- willful” mis-
demeanor violation.

45

There was, of course, an inevitable tension between the prosecutors'
goal that pleas of guilty be to appropriately serious charges and the
defendant's incentive to obtain a reduction in his potential liability.
WSPF used several possible approaches in dealing with this tension.
In some cases, when a defendant's potential liability included charges
of multiple but related violations of the same statute, the prosecutors
dropped most of the charges in exchange for a guilty plea to one or
a few of them, usually those supported by the strongest evidence of
the defendant's overall criminal activities. Another approach was to
drop charges of perjury or making false statements in exchange for
a guilty plea to the crime or crimes whose concealment had been the
purpose of the false statements. A third method was to drop substan-
tive charges in exchange for a guilty plea to a conspiracy charge whose
proof would include evidence of the conduct violating one or more
of the substantive criminal statutes. 6

Other patterns were also followed. The selection of charges to
be used for guilty plea purposes depended heavily on the facts and
circumstances of each case. If a defendant was facing charges or pos-
sible charges in another jurisdiction or in connection with the investi-
gations of more than one of WSPF's task forces, it was necessary to
take his liability as to all such matters into account in plea bargaining.
This could result in a defendant's pleading guilty to charges in one
area of WSPF's investigations in return for the dismissal of charges
in another task force's area or in another jurisdiction which were
unrelated except in the sense that the same defendant was involved.
When charges outside WSPF's jurisdiction affected plea bargaining,
the prosecutors consulted with the Assistant Attorney General in
charge of the Justice Department's Criminal Division and obtained
his consent to the disposition.

In assessing the effect of a particular plea bargain on a defendant's
liability, prosecutors and defense attorneys generally compare the
sentence he realistically seems likely to receive if convicted on all
possible charges against the sentence he seems likely to receive after
his plea. WSPF also used this means to assess what benefit a partic-
ular plea bargain would provide a defendant. For example, an elderly
defendant with a very ill wife would probably not receive consecutive
sentences on multiple charges, particularly if he had had a previously
distinguished career without prior criminal involvement. A possible
2 to 5-year maximum sentence on one felony plea did not represent
a significant concession by a prosecutor who could bring other possible
criminal charges against that defendant arising out of similar activities,

8 When plea agreements had been reached before the filing of formal charges,
the prosecutors filed only the charges to which the defendant intended to plead
guilty. When charges had already been filed before the agreement, the prosecutors
consented to the dismissal on the defendant’s motion of charges to which he was
not pleading guilty.

4$

Two of the factors listed as proper by the ABA Standards for
prosecutorial consideration in charging are “the extent of harm caused
the offense” and “the disproportion of the authorized punishment
in relation to the particular offense or the offender.” These considera-
tions imply a concern for proportional equity among defendants which
often weighed in WSPF's plea bargaining practices. When a person
who had played an important and responsible role in the course of
criminal conduct had received the benefit of a plea bargain because
of his ability to supply the prosecutors with information they needed,
or could not be charged with the most serious of his probable offenses
because of evidential or legal difficulties, the prosecutors were reluc-
tant to insist that someone else, who had played a relatively minor
role in the same activities, plead guilty to a more serious charge.
While WSPF took the view that a defendant who had played a sub-
ordinate role in major criminal conduct or had occupied a lower-level
position in a Government organization should, if possible, be charged,
concern for proportionality suggested that a subordinate should not,
if possible, face greater liability than the person who had directed his
criminal activities or otherwise bore greater responsibility. Thus,
when relatively minor figures had been convicted of serious offenses,
the prosecutors believed that those with greater responsibility or
those who had committed more serious crimes should plead to factual
charges that show the difference in their culpability, and WSPF
supplied the evidence of their more serious conduct to the probation
officer who would recommend a sentence to the judge.

Since in most cases a major purpose of plea bargaining was to
obtain the defendant's cooperation in WSPF's investigations, it was
necessary for the prosecutors to know in broad terms what information
he could provide and to have some confidence that he would be co-
operative and truthful. In some of the cases where a prospective
defendant had not been cooperating with WSPF before plea bar-
gaining, his counsel offered a hypothetical statement of the significant
evidence he would provide. The prosecutors then decided whether
they believed his expected cooperation, combined with other factors,
justified a plea bargain, and, if so, made an appropriate offer to the
defense attorney. Sometimes this process required several meetings,
during which defendants' attorneys brought to the prosecutors' atten-
tion exculpatory facts about their clients or points of law in their
favor. The prosecutors then had to meet among themselves to decide
whether to agree to any defense proposal or accept any argument for
reduced liability, and the defense lawyers had to" relay prosecution
offers back to their clients, advise them about the wisdom of accepting
or rejecting the offer, and return to the prosecutors with their responses
or counter-proposals. Many of the completed plea agreements involved
very close decisions within WSPF and strong disagreements among
the prosecutors.

47

Except in the cases of “volunteer” corporate contributors, where
a plea-bargaining policy had been announced publicly before the
disposition of any case, the terms of each agreement were embodied
in a letter from the Special Prosecutor to the defense attorney, which
was made public and filed in court at the time the plea was entered.
Ordinarily this letter indicated that the defendant would plead
guilty to a specified charge or charges; usually, the plea would cover
his criminal liability in matters then known to WSPF, but in some
cases pleas covered liability only in connection with more limited
matters specified in the letter. The agreement did not cover any
future criminal conduct, including perjury, or any undisclosed past
crimes which WSPF might uncover in the future and was conditioned
on the defendant’s giving truthful statements or testimony. In most
cases, the defendant would agree to cooperate fully with WSPF by
revealing his knowledge of all matters under investigation and
testifying if necessary at the trials of others.

It was further agreed that the extent of his cooperation, as the
prosecutors perceived it, would be made known to the court at the
time of sentencing.

The greatest concern of most plea-bargaining defendants was the
sentence they were likely to get, particularly their chances of being
imprisoned for any period of time. The prosecutors’ position on sen-
tencing, like that of most federal prosecutors, was to insist that the
defendant plead guilty to a charge whose authorized maximum
penalty would allow a judge to impose an adequate term of imprison-
ment if he felt one was warranted. The prosecutors also reserved
the right to submit to the probation officer of the court, for the
pre-sentence report, a statement of the evidence they had gathered
which tended to show the full circumstances of the conduct the
defendant had acknowledged in his plea, and similar conduct in
which he had engaged; a copy of this statement was given to defense
counsel but it was not subject to his approval. While the prosecutors
did not recommend sentences, they reserved the right to challenge
any false or misleading factual statements made by the defendant
or his counsel at the time of sentencing . 7

Defendants who were lawyers were often most concerned about a
conviction’s effect on their licenses to practice law. In their cases, the
prosecutors supplied copies of the indictment or information, the letter
describing the plea bargain, and all other papers submitted in court on
the case to the Center for Professional Discipline of the American Bar

7 In one case, the prosecutors agreed to inform the judge that the defendant
would have been charged with a less serious offense if one could have been found
which accurately described his conduct. In another, they agreed to call the
judge’s attention to the sentencing provisions of a substantive statute carrying
a less severe maximum penalty than the conspiracy charge to which the defendant
had entered his plea.

48

Association and to the Special Committee on Watergate Discipline of
the National Organization of Bar Counsel. These organizations had
agreed to notify the relevant state bar associations of the convictions
of any of their members, and to monitor any disciplinary proceedings
such state bodies undertook as a result. WSPF also responded to
requests from State and District of Columbia bar organizations for
information regarding the conduct of lawyers who had been convicted.

WSPF’s policy against making sentence recommendations applied
to cases disposed of either by guilty plea or by trial verdict, and was
based on the view, shared by many prosecutors, that sentencing is a
judicial function which judges can perform more effectively than
prosecutors. However, it is important that sentencing judges be aware
of all the facts relevant to their decision, and in plea bargaining the
prosecutors reserved their right to inform the judge of such facts, as
described above. After conviction by trial or plea, the sentencing of
many defendants was delayed long enough to permit probation officers
to prepare a pre-sentence report for the judge’s use. However, in all
the “volunteer” corporate contribution cases and a few others, at the
initiative of the judge, defendants were sentenced immediately after
the entry of their pleas, with neither pre-sentence reports from the
probation office nor factual information from the prosecutors beyond a
description of the offense which was the subject of the plea.

49

Major Investigations and
Other Actions

The five task forces of WSPF conducted investigations of several
hundred separate matters, and the counsel's office provided legal and
policy advice and other services to the task forces and the Special
Prosecutor. The most important work of the five task forces and the
counsel's office is described in summary form in this chapter. Not
included are large numbers of investigations each of which involved a
relatively minor commitment of office resources and did not result in
criminal charges. Also omitted are a number of investigations requir-
ing more substantial efforts which have not been publicly disclosed in
the past and which did not result in charges. Reporting them here
would publicize, for the first time and in an improper forum, allega-
tions from which the prosecutors concluded they should not initiate
court action for the various reasons cited in Chapter 2. In the investiga-
tions included within this chapter, allegations are cited if they have
already received extensive publicity or if they had become public
through court proceedings, legislative inquiries or other forums. As to
these also, when no prosecution resulted, the prosecutors made the
decision on the basis of one of the factors, or a combination thereof, as
outlined in Chapter 2.

WATERGATE TASK FORCE
Investigation of Watergate Cover-Up

When WSPF was established in May 1973, seven men already had
been convicted of burglary, conspiracy, and wiretapping charges in
connection with the break-in at the Democratic National Committee
headquarters on June 17, 1972. Part of the public testimony before
the Senate Select Committee supported allegations that high officials
of the Administration and the President's re-election campaign
either had sponsored the break-in or had tried to prevent the original
investigation from reaching beyond those seven. In addition, the
Assistant U.S. Attorneys for the D strict of Columbia, who had
handled the investigation until the Special Prosecutor's appointment,

SO

had obtained information strongly suggesting the involvement of
others.

By October 19, as a result of information developed by the U.S.
Attorney’s office and then by WSPF, three important witnesses had
pleaded guilty to conspiracy charges in connection with the cover-
up — former campaign officials Fred La Rue and Jeb Magruder and
former White House counsel John Dean. All three later testified for
the prosecution at the trial of others involved. WSPF also obtained a
guilty plea from former campaign official Herbert Porter, to a charge
of making false statements to a Government agency in connection
with the cover-up.

Along with efforts in the summer and fall of 1973 to obtain the
cooperation of these witnesses, WSPF also attempted to obtain by
grand jury subpoena other relevant evidence in the form of documents
and tape recordings of Presidential conversations. Special Prosecutor
Cox’s efforts to obtain compliance with the subpoena resulted in his
dismissal at President Nixon’s direction in October, followed by the
appointment of Special Prosecutor Jaworski and the production of
some of the subpoenaed materials. The President’s compliance with
the subpoena was incomplete, however (see below, the discussion of
the 18 % minute gap), and the necessaiy inquiries into the causes of
his failure to so comply further delayed the development and presenta-
tion to the grand jury of evidence relating to the cover-up.

Nevertheless, by March 1974, the grand jury had obtained
sufficient evidence to hand up indictments on charges of conspiracy,
obstruction of justice and perjury; seven men formerly associated
with the White House or the President’s campaign committee were
named as defendants to one or more of the charges — Charles Colson,
John Ehrlichman, H. R. Haldeman, Robert Mardian, John Mitchell,
Kenneth Parkinson, and Gordon Strachan. At the Special Prosecutor’s
suggestion, the grand jury also submitted a report which the court
transmitted under seal to the House Judiciary Committee in connec-
tion with its inquiry into the possible impeachment of President
Nixon. The report contained evidence relevant to the Committee’s
inquiry into the President’s possible involvement in the cover-up.
In addition, the grand jury authorized the Special Prosecutor to
name 18 individuals, including President Nixon, as unindicted
co-conspirators.

After the indictment, the Special Prosecutor obtained a trial
subpoena for additional White House tapes and documents. Much of
the summer of 1974 was consumed by litigation over the validity of
this subpoena, which was eventually upheld by the Supreme Court,
and by examination of the materials produced in compliance with
the court’s decision. During this period, the House Committee com-
pleted its impeachment inquiry by recommending the President’s
impeachment, the President publicly released transcripts of several

51

subpoenaed tapes which showed him to have been a parti-
cipant in the cover-up, and he resigned his office August 9. The
prosecutors immediately began to review the question of his possible
criminal liability, but before any final decision could be made on
whether to recommend his indictment he was pardoned by his
successor, President Ford.

By the time the trial started on October 1, charges against Colson
had been dismissed as a result of his guilty plea in another case (see
below, the discussion of Fielding break-in), and those against Strachan
had been severed. The trial of the five remaining defendants, which
lasted 3 months, resulted in the convictions of Ehrlichman, Haldeman,
Mardian, and Mitchell, and the acquittal of Parkinson. Mitchell,
Haldeman and Ehrlichman were each sentenced to serve 2% to 8
years imprisonment, while Mardian received a 10-month to 3-year
prison sentence. All four convictions are now on appeal. The charges
against Strachan were dismissed on motion of the Special Prosecutor
because the legal effect of immunity granted to him by the Assistant
U.S. Attorneys and the Senate Committee created doubts about
whether he could be tried without infringing upon his constitutional
privilege against self-incrimination.

After the Watergate cover-up trial, intensive investigation and
consideration was devoted to possible perjury and obstruction of
justice by two other persons during the course of the 1972-73 cover-up
investigation. Evidentiary and legal problems prevented initiation
of prosecution in these matters.

Investigation of 18y 2 Minute Tape Gap

On October 23, 1973, the White House agreed to provide the U.S.
District Court for the District of Columbia with subpoenaed tapes,
notes, and memoranda of nine Presidential conversations related to
the Watergate cover-up. Seven conversations were produced, but
White House counsel claimed that the remaining two had not been
recorded. This assertion led Judge Sirica to hold hearings beginning
October 31 to determine the facts. On November 21, while the hearings
were recessed to await further testimony on the failure to record the
two conversations, White House counsel Fred Buzhardt requested
an in-chambers meeting with Chief Judge John Sirica and attorneys
from WSPF. At that meeting, Buzhardt announced that the sub-
poenaed tape of a conversation between President Nixon and H. R.
Haldeman on June 20, 1972 — 3 da}^s after the Watergate break-in — had
been obliterated inexplicably by a buzzing sound lasting 18% minutes.
Hal deman's notes of that meeting indicated that the obliterated
portion of the tape covered only that part of the conversation which
was related to the break-in.

52

The discovery of this tape gap led Judge Sirica to reopen the
hearings, which continued for 7 days in late November and early
December. The President's secretary, Rose Mary Woods, testified
at the public hearing that she might have accidentally erased 4 or 5
minutes of the subpoenaed tape on October 1, 1973, while transcribing
the conversation. She explained that this possible erasure occurred
when she inadvertently left her foot on the pedal controlling the tape
recorder while answering the telephone and conducting a conversation.
In addition to Miss Woods' testimony, other White House aides,
attorneys, and Secret Service personnel answered questions about
the storage of the tape, the methods used to transcribe it, who had
access to it, and the discovery of the gap. Testimony and access logs
kept by custodians of the tapes revealed that, after being recorded,
this tape had been routinely placed in a storage vault and not dis-
turbed until September 28, 1973, two months after it had been sub-
poenaed by the grand jury. Any mishandling of the tape appeared
to have occurred between that date and the discovery of the gap by
White House counsel on November 14, 1973.

In a further effort to ascertain the cause of the 18% minute gap,
the court appointed a panel of six experts in acoustics and sound
engineering approved by the White House and WSPF. The panel
was asked to determine the method by which the gap had been created,
the kind of machine that had been used to create it, and the existence
of any possibility of recovering the conversation. The experts began
various tests on the tape early in December in the presence of repre-
sentatives of the White House and WSPF. Their report, delivered to
the court January 15, 1974, concluded that the gap had been produced
by at least five separate hand operations of the stop and record buttons
of a Uher 5000 machine, the same model used by Woods in transcribing
the tape. The panel also concluded that recovery of the obliterated
conversation would be impossible.

Since the experts' report made it clear that the gap had been
caused by intentional erasures, and evidence produced at the hearings
showed that the erasures had occurred after the tape had been sub-
poenaed, Judge Sirica referred the matter to the grand jury for
further investigation of the possibility of obstruction of justice.
A grand jury, assisted by WSPF and the FBI, began hearing witnesses
January 28, 1974. It concluded from the testimony of over 50 people
that a very small number of persons could have been responsible for
the erasures, but it was unable to obtain evidence sufficient to pros-
ecute any individual.

53

Investigation of Submission of Presidential Transcripts
to House Judiciary Committee 1

On April 30, 1974, President Nixon authorized the submission to
the House Judiciary Committee, and the release to the public, of a
number of transcripts of recorded conversations. The Committee had
subpoenaed the original tapes of these conversations in connection
with its impeachment inquiry. At the same time, the President offered
to allow the Committee's chairman and ranking minority member
to listen to the original tapes and verify the accuracy and complete-
ness of the transcripts. The Committee declined this offer.

The Committee and WSPF had already obtained some of the tapes
of conversations included in the transcripts, and comparision of the
WSPF transcripts with the White House transcripts showed that the
latter contained several omissions of portions of conversations. The
prosecutors made some inquiries in the months following the tran-
scripts' release, but investigation had to await WSPF's receipt of
additional tapes in August 1974, pursuant to the trial subpoena in the
Watergate cover-up case. A full-scale investigation began early in 1975
to determine whether various materials were deleted from the tran-
scripts for the purpose of obstructing the Judiciary Committee's
inquiry in violation of Title 18, United States Code, Section 1505. To
establish a violation of this section it would be necessary to prove that
portions of the conversations damaging to the President were willfully
deleted with the corrupt intent to mislead the Committee.

Certain problems made the necessary elements difficult to prove.
The Committee already possessed the tapes of several of these con-
versations, and as to these, White House deletions in transcripts
could not mislead or obstruct the Committee. The WSPF investiga-
tion thus excluded those transcripts from consideration. Further,
President Nixon submitted his transcripts with the express statement
that he was providing only the information that he felt was necessary
to Committee business. More significantly, however, in view of the
White House offer to allow Committee representatives to listen to the
tapes for their own verification, corrupt intent was difficult, if not
impossible, to establish unless direct proof existed either to negate
the bona fides of this Presidential offer to the Committee, or to show
an explicitly stated intention to deceive. Finally, the White House
transcripts carefully noted that deleted material was “not related to
Presidential action " (emphasis supplied). The choice of this language
to characterize the deletions introduced great ambiguity in the intent
factor; an advocate could state with literal truth that the Committee
was put on notice by this language that Watergate-related conversa-

1 Although this matter arose as part of the Watergate cover-up investigation,
the inquiry detailed in this section was conducted by attorneys not assigned to
the Watergate Task Force.

54

tions may have been omitted from the transcripts when the conversa-
tion had not been followed by specific actions.

This investigation was conducted in large part through the in-
terviewing of various witnesses by WSPF and the FBI, outside of the
grand jury. The investigation began with a comparison of WSPF
transcripts with those prepared by the White House. Seven or eight
deletions were selected which, because of their length and nature,
could not realistically have been omitted because of a problem in
audibly determining what was on the tape. WSPF focused the in-
vestigation on these deletions and attempted to determine why they
took place. Almost all persons involved in the preparation of the
transcripts in the White House were interviewed to track the transcrip-
tion process and the course of decision-making as to the deletions.
These and other persons were also interviewed in order to check the
bona fides of the Presidential offer to have Committee representatives
listen to the entire tape for omissions they thought might be relevant
to the Committee impeachment inquiry.

WSPF concluded that there is strong circumstantial evidence
that at least some of the lengthy deletions were deliberate, but no
prosecution was possible. No direct evidence existed to overcome the
above problems of establishing the necessary criminal intent. In
addition, all the available evidence indicated that the verification
offer by the White House to the Committee was made with full
expectation that the offer might indeed be accepted.

"DIRTY TRICKS" INVESTIGATION

In October 1973 several newspapers reported that President
Nixon’s re-election campaign included an undercover network of
agents who had engaged in various kinds of political espionage and
sabotage against candidates for the Democratic Presidential nomina-
tion. The reported activities came to be known collectively as “dirty
tricks,” and included forging letters and other literature which un-
fairly attacked some candidates, planting manufactured stories in
the press, copying documents from campaign files, and recruiting
people to ask embarrassing questions at candidates’ rallies or to picket
such rallies on behalf of opposing candidates. The Washington Post
identified California lawyer Donald Segretti as the director of these
operations and reported that he had been recruited and paid by
White House staff members and re-election campaign aides.

The press disclosures, along with complaints by one of the Demo-
cratic candidates whose Florida primary campaign had been a target
of such activities, led the U.S. Attorney’s office for the Middle Dis-
trict of Florida to conduct an investigation with the help of the FBI.
Segretti and George A. Hearing, one of Segretti’s associates, were

indicted on May 4, 1973, in Florida on charges of conspiracy and
distributing campaign literature without properly identifying its
source. A week later, Hearing pleaded guilty and was sentenced to a
year’s imprisonment.

Even before Segretti’s indictment in Florida, the Assistant U.S.
Attorneys conducting the Watergate investigation in Washington
had interviewed and questioned before the grand jury several former
White House and re-election campaign officials about his sponsorship.
After the appointment of Special Prosecutor Cox, the “dirty tricks”
investigation was taken over by WSPF. Facing the Florida charges
and possible charges in other states, Segretti offered in July to cooper-
ate with WSPF, and met with the prosecutors twice that summer,
giving information that indicated that former White House aide
Dwight Chapin had lied to the grand jury about his involvement in
Segretti’s activities. Segretti later pleaded guilty to three misdemeanor
charges in Washington, D.C., and was sentenced to serve 6 months
in prison.

The day after his guilty plea, Segretti testified before the grand
jury under a grant of immunity. His testimony and other evidence
resulted in Chapin’s indictment on four perjury charges on November
29. On April 5, 1974, after trial, Chapin was convicted on two of
those charges; one of the remaining charges was dismissed during the
trial, and the jury acquitted him of the other. Sentenced to serve
10 to 30 months in prison, Chapin filed an appeal. On July 14, 1975,
the Court of Appeals affirmed his conviction.

The Florida investigation had identified several people who had
engaged in “dirty tricks” as agents of Segretti. Some had been im-
munized in order to provide the Florida prosecutors with information
about Segretti’s own conduct. WSPF’s subsequent investigation,
which involved his operations in several states besides Florida, iden-
tified about 25 people who had engaged in various activities on his
instructions. Most of them had engaged in conduct that was not
criminal — for example, supplying Segretti with local news clippings,
asking embarrassing questions at candidates’ public appearances,
peacefully picketing events at which candidates were to appear,
putting Segretti in touch with other possible agents. Those who
had engaged in more serious conduct such as distributing misattributed
literature, were generally young people who had done so without
knowing it was illegal. Because of their youth, the marginal and
isolated nature of their criminality, if any, and their low level of
influence in Segretti’s operation, WSPF did not seek to prosecute
these persons.

Other allegations, including those made in the press and in testi-
mony before the Senate Select Committee, indicated that various
other “dirty tricks” had been perpetrated against Democratic cam-
paigns by people working on behalf of the President’s re-election.

56

WSPF investigated these allegations and found either that they did
not involve criminal conduct or that the filing of criminal charges
was not warranted by the facts uncovered.

The prosecutors also received allegations about possible “dirty
tricks” by agents of Democratic candidates directed against President
Nixon’s campaign. Most of these involved the possible use of Demo-
cratic candidates’ headquarters and facilities in organizing demon-
strations that disrupted public appearances of the President or of
persons campaigning on his behalf. The most substantial of these
charges was that Senator George McGovern’s Los Angeles campaign
headquarters and telephone bank had been used in organizing a large
demonstration at the Century Plaza Hotel when the President ap-
peared there in September 1972. As to this and the other matters
they investigated, the prosecutors did not obtain sufficient evidence
to bring criminal charges.

INVESTIGATIONS RELATING TO

INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION

During the spring of 1972, while the Senate Judiciary Committee
was considering the nomination of Richard Kleindienst to be Attorney
General, press accounts suggested that the Department of Justice
had settled three antitrust suits in 1971 against International Tele-
phone and Telegraph Corporation (ITT), one of the Nation’s largest
conglomerates, in return for ITT’s alleged offer to help finance the
1972 Republican National Convention. The Committee questioned
Kleindienst, other Government officials, officers of ITT, and others
with relevant knowledge about the matter, and then requested the
Justice Department to investigate the possibility that perjury had been
committed in its hearings.

After WSPF was established, Attorney General Richardson, who
had succeeded Kleindienst, asked Special Prosecutor Cox to look into
the possibility that perjury had been committed in the 1972 hearings
(the Justice Department’s investigation had made little progress in
the preceding year), as well as the possible relationship between the
antitrust settlements and ITT’s pledges of support for the Republican
convention. He also asked Cox to investigate an allegation, referred
to the Justice Department by the Securities and Exchange Com-
mission (SEC), that a Commission inquiry had been obstructed by
ITT’s failure to produce certain documents. An ITT task force was
organized within WSPF to conduct these inquiries.

Later, in response to additional referrals from the Justice Depart-
ment and information received from other sources, the ITT task force
also investigated charges that:

— The Kleindienst confirmation hearings had been illegally
obstructed;

57

— Crimes had been committed in connection with the transfer of
documents relating to ITT from the SEC to the Justice Department
at a time when a House Commerce Subcommittee was seeking such
documents and in connection with subsequent Subcommittee hear-
ings inquiring into the circumstances of the transfer;

— ITT had been granted a favorable tax ruling by the Internal
Revenue Service as a result of improper influence or fraud;

— Improper influence had been applied to the Justice Depar tment’s
handling of the antitrust suits against ITT, apart from the 1971
settlement ;

— Improper influence had been used in securing the agreement of
another corporation to merge with ITT and in obtaining necessary
approvals of that merger;

— Perjury had been committed by various people before Congres-
sional committees, the SEC, and the grand jury.

The investigation into the ITT-related matters occupied several
attorneys for approximately 18 months. Investigation of the antitrust
cases involved an examination of the July 1971 settlements and
improper attempts to influence these settlements. The cases involved
Government challenges to ITT’s proposed mergers with the Canteen
Corporation (filed in April 1969), the Hartford Fire Insurance Com-
pany (filed on August 1, 1969), and the Grinnell Corporation (filed
on August 1, 1969). While other events were also examined, the
principal focus was on determining whether illegal influence was exer-
cised (1) to prevent the filing of the Canteen case or cause the Govern-
ment not to seek preliminary relief enjoining that merger; (2) to con-
vince the Government in the summer and fall of 1970 either to drop
the cases entirely or accept a settlement involving no meaningful
divestiture; (3) to prevent or delay the filing of an appeal in the
Grinnell case to the Supreme Court; and (4) to cause the settlement
of all three cases in July 1971.

In each of these instances the evidence accumulated by WSPF
showed that ITT had gained access, directly or indirectly, to important
Administration officials who in some instances took some action
relating to these cases. In only one instance did the effort to secure
high-level influence produce a provable impact on the handling of the
cases. The further task, however, was to discover whether these
attempts to influence the case were corrupt, such as the result of a
bribe, or whether they were the product of an intensive though legal
lobbying effort. Those whose conduct was examined in this connection
included persons who sought the assistance of Administration officials,
the officials who discussed these cases with people outside the Govern-
ment, and those with high-level responsibility for the cases who dealt
with Administration officials.

The investigation relating to the Kleindienst confirmation hearings
focused on two areas : first and more significant was whether any wit-

58

ness at the hearings had committed perjun ; second, whether the
hearings were obstructed illegally. In the search for possible perjury,
the investigators examined the testimony of every witness who testi-
fied about the ITT antitrust cases and the San Diego convention
pledge.

The obstruction inquiry is more difficult to define. It was clear
that the Judiciary Committee did not receive the complete “story”
during its hearings and did not obtain substantial numbers of per-
tinent ITT and Government (White House and Justice Department)
documents. The goal of WSPF was to discover why this took place
and whether the facts involved illegal defiance of Committee process or
acts sufficient to constitute a violation of the criminal obstruction laws.

In June 1972, the Securities and Exchange Commission filed a
case against ITT and certain of its officers in which a consent judg-
ment was entered. In September and October 1972, the SEC began
to examine whether ITT had improperly withheld subpoenaed docu-
ments. When, in October 1972, a House Commerce Committee sub-
committee requested the SEC's ITT files, the SEC suddenly trans-
ferred the case to the Justice Department together with the files,
including documents showing significant contacts between ITT and
important Administration officials. WSPF investigated the matter to
determine whether this transfer was an illegal obstruction of the
House subcommittee, whether anyone committed perjury at the
various hearings held by the subcommittee into the transfer, and
whether the SEC was improperly influenced to omit a fraud charge
from its 1972 case. Also examined was ITT's failure to produce docu-
ments from its Washington office in response to the SEC's subpoena.

WSPF also investigated the circumstances under which ITT
received favorable tax treatment for its merger with the Hartford Fire
Insurance Company. The IRS ruled in October 1969 that ITT had to
divest its holdings in that company's shares prior to the stockholders'
meeting. Later that month, IRS ruled that a contract involving the
“transfer” of these shares to an Italian bank (Mediobanca) was a
sufficient sale of the shares under the earlier ruling. In fact, it was
questionable whether this contract involved a true sale, especially
when the circumstances relating to its negotiation became clear.
WSPF has focused on whether these tax rulings were the product of
improper influence, whether ITT or its representatives were guilty of
criminally defrauding the Government by misrepresenting the facts
relating to the stock transfer, and whether witnesses who testified
about the transaction before the SEC had committed perjury. Al-
though the WSPF inquiry in the area of improper influence is com-
pleted, the SEC investigation is continuing with a new evidentiary
focus as to the transfer of shares.

During its original investigation the Securities and Exchange
Commission had also looked into certain events related to the eventual

merger of ITT and Hartford. Although no attempt was made to redo
all that the SEC had covered in their investigation, WSPF also
conducted its own investigations of these matters.

Finally, the ITT task force also examined testimony before the
Senate Foreign Relations Subcommittee on Multinational Corpora-
tion’s hearings into ITT’s activities in Chile during 1970 and 1971
to determine, among other considerations, whether a particular witness
had committed perjury. Additionally, the ITT task force spent
substantial time investigating possible grand jury perjuries committed
during its inquiries.

The investigations of the ITT task force resulted in two criminal
cases. In the first case, former Attorney General Richard Kleindienst
pleaded guilty on May 16, 1974, to a charge of failing to give accurate
testimony at his 1972 confirmation hearings, regarding White House
influence on the antitrust suit. He was fined $100 and given a sus-
pended 30-day jail term. In the second case, California Lieutenant
Governor Ed Reinecke was convicted after trial on July 27, 1974,
of one count of perjury in connection with his testimony at the same
hearings. He received a suspended 18-month sentence, and the
conviction is now on appeal.

In the remaining areas of the ITT task force, pursuant to the
factors discussed in Chapter 2 of this report, no prosecutions were
brought. Primarily, this result occurred because there was insufficient
evidence to allow the initiation of a criminal case. Also, as noted above,
the SEC continues to investigate one aspect of the ITT matter.

"PLUMBERS" INVESTIGATION
Fielding Break-In

In the course of investigating the Watergate case in the spring
of 1973, Assistant U.S. Attorneys for the District of Columbia learned
from former White House counsel John Dean that a special investi-
gative unit in the White House, known as the “Plumbers,” had been
responsible for a break-in in September 1971 at the Los Angeles offices
of Dr. Lewis Fielding, conducted to secure the psychiatric records
of Fielding’s former patient, Daniel Ellsberg. At the time of the break-
in, Ellsberg was under indictment for his role in the alleged theft of
the classified “Pentagon Papers”.

By the time WSPF was established, the investigation showed
that “Plumbers” Gordon Liddy and Howard Hunt had planned the
burglary, that some of their Cub an -American associates had carried
it out, and that White House aides Egil Krogh and David Young
had obtained the approval of another White House staff member,
John Ehrlichman, for the project. Hunt had been given immunity
from further prosecution after his Watergate conviction and Young

60

had been immunized in order to obtain his cooperation in the Fielding
investigation. During the summer of 1973, WSPF’s “Plumbers”
task force continued this investigation.

On September 4, 1973, a Los Angeles County grand jury which
had also been investigating the break-in returned an indictment
charging Ehrlichman, Krogh, Liddy, and Young with conspiracy
and burglary, Krogh with solicitation to commit burglary, and
Ehrlichman with perjury in connection with his testimony before
the Los Angleles grand jury. After consultation with WSPF and
attorneys for the defendants, the District Attorney in Los Angeles
agreed not to press the case to trial pending the outcome of WSPF’s
investigation.

On October 11, 1973, a Federal grand jury in Washington indicted
Krogh on two counts of perjury. These charges were dropped on
November 30, following Krogh’s plea to a charge of having conspired
to violate Dr. Fielding’s civil rights and his agreement to cooperate
with WSPF. On January 24, 1974, Krogh was sentenced to serve
2 to 6 years in prison, with all but 6 months of the term suspended.

WSPF’s investigation culminated in the March 7, 1974, indictment
of Ehrlichmen, former White House aide Charles Colson, Liddy,
Bernard Barker, Eugenio Martinez, and Felipe DeDiego on charges
of conspiring to violate Dr. Fielding’s civil rights. Ehrlichman also
was charged with lying to the FBI and three counts of perjury in
connection with the Federal investigation.

Colson, who also had been indicted in connection with the Water-
gate cover-up, began discussions with the prosecutors in May to
dispose of both matters. An agreement was eventually reached
whereby he pleaded guilty on June 3 to a felony charge of obstructing
justice, based on his efforts to obtain and disseminate derogatory
information about Ellsberg with intent to impede Ellsberg’s pending
criminal trial. Colson also agreed to cooperate in WSPF’s investi-
gations and prosecutions and on June 21, he was sentenced to a
1- to 3-year prison term. The other charges against him in the Fielding
and Watergate cases were dismissed.

During pre-trial proceedings in the Fielding case, Ehrlichman
maintained that he had not known in advance that Dr. Fielding’s
office would be broken into and that the effort to collect information
about Ellsberg had been a legitimate attempt to protect the national
security. Arguing that White House files contained evidence which
might support his contentions, his attorneys obtained a subpoena
for notes and classified White House documents. When White House
resistance to this subpoena threatened to lead to a dismissal of charges
against him, his case was severed for a brief period until White House
counsel submitted an affidavit that the files contained no material
of an exculpatory nature.

61

591-439 0 - 75 -5

Shortly before trial, DeDiego moved for dismissal of the charges
against him, claiming that the evidence which would be used against
him was based on immunized testimony he had given to a Florida
prosecutor. Judge Gerhard Gesell, to whom the case had been as-
signed, granted the motion. WSPF successfully appealed this decision
on the ground that an evidentiary hearing should precede a dismissal.
But the prosecutors later dropped the charges because the immunized
testimony raised doubts about the probability of a successful trial.
The matter was transferred to Department of Justice lawyers who
were “untainted” because they had had no access to DeDiego’ s
immunized account.

The Fielding jury trial lasted 3 weeks and resulted in a guilty
verdict on July 12, 1974, against all remaining defendants, with the
exception of a not guilty verdict on one of the three perjury charges
against Ehrlichman. Judge Gesell, in dismissing one charge against
Ehrlichman of lying to the FBI, held that the statute he was accused
of violating did not extend to the FBI investigative interview under
the kinds of circumstances shown at the trial. On July 31, Barker
and Martinez, who had spent substantial time in jail following their
conviction in the original Watergate case, received suspended sen-
tences and 3 years’ probation. Liddy was sentenced to a 1- to 3-year
prison term and Ehrlichman to a term of 20 months to 5 years. All
defendants have appealed their convictions.

Other Break-In Investigations

Newspaper reports in early 1973 suggested that the participants
in the Watergate break-in might also have burglarized the Embassy
of Chile in Washington, D.C., on the weekend of May 13-15, 1972,
and the homes of Chilean diplomats in New York City earlier in 1972.
The “Plumbers” task force investigated these allegations, inter-
viewing the Watergate burglars, officials of the embassy, local police
officers, members of a Senate committee staff, former officials of the
White House and the Central Intelligence Agency, and journalists.
The State Department, CIA, and FBI also provided information in
connection with this incident. The investigation did not develop
evidence which would form a basis for criminal charges.

WSPF also received allegations from various sources that the
White House “Plumbers” or other agents had been responsible for
numerous unsolved burglaries in the Washington, D.C., area and
elsewhere. The victims of these burglaries had been persons or
organizations that might be deemed hostile to the Nixon Administra-
tion. The task force’s investigations were directed at determining
whether there was evidence that the “Plumbers” or other known
White House agents had been involved in any of these burglaries.
No such evidence was found, and no criminal charges were brought.

62

Wiretap Investigations

Press reports in May 1973 alleged that between 1969 and 1971 the
FBI, at the direction of the White House, conducted wiretaps directed
at a number of Government officials and newsmen in an effort to
discover the sources of unauthorized disclosures of information related
to the national security. It was also a leged that some of these wiretaps
had been conducted in connection with the investigation of the dis-
closure of the “Pentagon Papers.” These reports prompted Judge
W. Matthew Byrne, then presiding at the criminal trial of Daniel
Ellsberg, to order the Justice Department to determine whether or
not such wiretapping had occurred, and to produce in court all wiretap
evidence in any way related to the Ellsberg case.

William D. Ruckelshaus, the new Acting Director of the FBI,
launched an intensive investigation to determine whether such wiretap
evidence existed. On May 10, 1973, Ruckelshaus informed Judge
Byrne that his investigation had determined that such a wiretap
project had taken place, that an FBI employee recalled that during
the course of a wiretap on the home phone of Dr. Morton Halperin 2
at least one telephone conversation of Daniel Ellsberg had been
recorded, and that the FBI had not been able to locate the records of
these wiretaps. The following day, May 11, Judge Byrne declared a
mistrial and dismissed all charges against Ellsberg and his co-defendant
on the ground of Government misconduct, citing both the Fielding
burglary and the failure of the Government to produce the records of
the electronic surveillance of Ellsberg. The following day all records of
the wiretap project were located among the White House files of John
Ehrlichman and were returned to the FBI. On May 14, 1973, Ruckels-
haus held a press conference and revealed that the wiretap project had
been conducted from May 1969 to February 1971, that a total of 13
Government officials and four journalists had been subject to electronic
surveillance, and that in the summer or fall of 1971 all records of the
wiretap project had been removed from the FBI and delivered to
Ehrlichman at the White House.

WSPF began its investigation into the events surrounding the
wiretap project in the late summer of 1973. Press reports, principally
in the New York Times , had listed the names of 17 individuals alleged
to have been the subjects of these wiretaps. Because some of the
Government officials alleged to have been the subjects of these
wiretaps had worked in purely domestic areas, WSPF first inquired
whether or not these wiretaps had been authorized by the Attorney

2 Dr. Halperin, a former assistant to Dr. Henry Kissinger, later filed a civil
damage suit against Kissinger and others alleging that the wiretapping of Hal-
perin’s phone had been illegal. A number of facts concerning the wiretap project
have been made public as a result of the depositions taken in the Halperin v.
Kissinger litigation. That case is still pending and further depositions may produce
additional public information.

63

General and, even if authorized, whether that authorization had been
given on the basis of good faith, legitimate national security concerns. 3
It had also been alleged that the wiretap on one of the Government
officials had continued after he left the Government to work as a
policy adviser for a Democratic Senator then seeking the Presidential
nomination. This fact, along with certain documents received by
WSPF, 4 also led WSPF to question whether these wiretaps had been
used to develop partisan political intelligence, and in addition,
whether or not any wiretap information had been “leaked” to the
press or otherwise disclosed. (Disclosure of wiretap information is
itself a violation of the wiretapping statute.) The continuing investiga-
tion finally focused on whether various Government officials had
concealed the existence of these wiretaps to obstruct justice — i.e., to
prevent the disclosure of the electronic surveillance of Ellsberg— or
had concealed the existence of these wiretaps by illegal means such as
perjury.

During September and October 1973, WSPF considered requesting
direct access to the wiretap files that Ruckelshaus had brought back
to the FBI. Special Prosecutor Cox was asked by the FBI to route any
such request directly to the Attorney General since the FBI felt that
it could not comply with such a request unless instructed to do so by
the Attorney General. Cox decided to hold off further negotiations on
this issue until after conclusion of the litigation over grand jury access
to Presidential tape recordings. In the interim. WSPF made an initial
determination as to which wiretaps appeared to lack proper national
security justification, and attorneys interviewed individuals who had
allegedly been the subjects of these questionable wiretaps.

After Cox was fired, Jaworski sought and gained access to the wire-
tap files. The files were reviewed in December 1973 and the following
month, WSPF began presenting witnesses on this matter to the newly
empaneled grand jury. The prosecutors examined voluminous FBI
records, interviewed current and former FBI and Justice Department
personnel, secured grand jury testimony, and spoke with others who
were believed to have relevant knowledge.

In the summer of 1974, the prosecutors expanded their investiga-
tion by obtaining the assistance of FBI agents assigned to the General
Investigative Division. 5 Thereafter, FBI agents conducted most of

3 Warrantless wiretapping on grounds of domestic (as opposed to foreign)
threats to national security was not ruled illegal until a Supreme Court decision
in June 1972.

4 See House Judiciary Report, Book VII, Part I, pp. 360-364, where sub-
stantial portions of the documents referred to have been published.

5 This arrangement was satisfactory to both the FBI and WSPF since the
General Investigative Division had jurisdiction to investigate the types of
criminal activity in question, and in addition, that division of the FBI had had
no previous dealings with the wiretap project, which had been handled exclusively
by the FBI’s Intelligence Division.

64

the initial interviews of witnesses. The investigation of wiretaps
initiated by the White House, and the subsequent concealment of the
nature and records of that activity, involved the full time of one
attorney and part of the time of another over an 18-month period.

The “Plumbers” task force also looked into a number of allega-
tions of non -FBI wiretapping which was alleged to have been illegal.
The most significant of these inquiries was the alleged wiretapping
for 2 weeks of the home telephone of Joseph Kraft, a syndicated
columnist, first revealed in June 1973 by John Dean’s testimony
before the Senate Select Committee. The investigation included
interviews of former White House, FBI, and telephone company
officials, an interview of Mr. Kraft, and a review of relevant White
House and FBI documents.

The Counsel to the Special Prosecutor examined the various
legal issues involved in these wiretap investigations, and concluded:

. . . Congress has specifically provided in 18 U.S.C.. Section
2511(3) that the statutory prohibition against wiretapping does
not apply to measures the President believes necessary “to protect
national security information against foreign intelligence activ-
ities.” Whether any of the taps in question fit within this exception
could be debated as a matter of statutory interpretation as well
as a matter of actual intention, and there would also be room to
contend that the duration of some of the taps showed that even
an initially legitimate purpose was altered to an impermissable
domestic political goal.

Nevertheless, because of the numerous uncertainties in this
area, I would be hesitant to recommend a criminal prosecution
of any of the principals involved in initiating what appeared to
be “national security” wiretaps.

WSPF investigators and Counsel concluded that at least two of
the wiretaps, unlike those addressed in counsel’s opinion above, had
little, if any, “national security” justification. As to these, however,
after investigation by WSPF and the FBI, there was insufficient
evidence to bring criminal charges, particularly when weighed against
other matters under inquiry by WSPF as to some of the subjects
of the wiretap investigation.

Alleged Misuse of Federal Agencies

Internal Revenue Service (IRS). In the summer of 1973, the Senate
Select Committee heard testimony that members of the White House
staff had made various attempts to use the powers of the Internal
Revenue Service to further President Nixon’s political interests.
Former White House counsel John Dean, among others, testified
about an “enemies project,” which sought “to use the available

65

Federal machinery,” including the audit and investigative powers of
the IRS, against individuals and organizations viewed as “enemies”
and on behalf of individuals viewed as “friends” of the Nixon
Administration.

Because these allegations related to abuses of governmental
power similar to the activities of the White House “Plumbers,” their
investigation was assigned in August 1973 to attorneys in the
“Plumbers” task force of WSPF. The prosecutors began to examine
the matters raised by the Senate hearings and by related allegations.
For example, a lawsuit brought by the Center for Corporate Re ponsi-
bility claimed that its tax-exempt status had been revoked illegally
because of its position on various social and economic issues; and
various people who had assumed public positions in opposition to
Nixon Administration policies complained that they had been sub-
jected to repeated audits or other forms of harassment by the IRS.

The prosecutors began their investigation by familiarizing them-
selves with IRS operations, including the normal procedures for
initiating audits, and by attempting to determine which of the many
allegations appeared to have the most substance and, if true, would
form the basis for criminal prosecutions. In this process they inter-
viewed a number of former and current IRS officials who provided
information on IRS procedures and in some cases also provided facts
giving rise to new inquiries.

Although a large number of allegations about possible misuses of
the IRS were investigated, the prosecutors made their most extensive
inquiries in two areas — the alleged efforts of White House aides in
1972 to get the IRS to audit and harass Lawrence F. O’Brien, Sr.,
then the chairman for the Democratic National Committee, and
alleged attempts by White House officials to influence the IRS to
audit various “enemies” of the Administration and act favorably
toward certain “friends” of the Administration. During these investi-
gations, the prosecutors received relevant information from the IRS
itself, which had conducted its own “in-house” inquiries, and from the
staff of the Congressional Joint Committee on Internal Revenue
Taxation, which had conducted investigations of matters raised in the
Senate hearings.

From the beginning of both of these investigations the prose-
cutors faced two substantial problems which made any eventual
prosecution unlikely. First, even if evidence tending to confirm the
allegations was developed (and in man}^ cases it was), it would have
been difficult to prove the specific intent required to establish a vio-
lation of Federal law, in this case, a conspiracy to defraud the United
States in violation of Title 18 U.S.C. § 371. In theory, any concerted
effort to use Government resources for illegitimate and political —

66

perhaps punitive — purposes would seem to constitute a violation of
this provision; but in practice, proof beyond a reasonable doubt of
the requisite corrupt intent is difficult where there are objective indi-
cators in each case to support the argument that an audit of an
“enemy” was, in fact, in order and consistent with normal IRS
standards. Moreover, none of the incidents in question involved evi-
dence of payoffs or other corrupt practices.

A second problem hindering successful investigation arose from
the fact that there were numerous inquiries and investigations by
other agencies concerning the matters under investigation by WSPF.
This often resulted in those principally involved learning substantially
all details of the matters WSPF was investigating even before WSPI —
and/or the grand juries — came to deal with them. These individuals
were able to smooth conflicting testimony and otherwise embroider
explanations which made continued investigation by WSPF difficult.
Some witnesses who were dealing with WSPF often were close and
long-time associates of those under investigation.

Despite these problems the grand jury’s investigations did go
far in detailing the facts of what had transpired in the area of White
House abuse of the IRS. Indeed, in fully investigating the facts of
the two specific incidents noted above, WSPF and the grand juries
received the testimony of perhaps a hundred or so witnesses. It was
concluded ultimately, however, that there was insufficient evidence
and/or substantial legal problems mitigating against the bringing of
any criminal charges.

White House “ Responsiveness Program ” and Related Matters. Evi-
dence obtained by the Senate Select Committee and provided to
WSPF in 1974 indicated that as part of a “Responsiveness Program”
conducted by a staff unit in the White House, certain White House
staff members had attempted in 1972 to channel Federal grants,
contracts, loans, subsidies, and other benefits to persons and organi-
sations supporting President Nixon’s re-election campaign, and to
withhold such benefits from those opposing his candidacy. Two in-
stances of possible criminal conduct were alleged to have taken place
pursuant to the “Responsiveness Program”: the dropping of an anti-
discrimination suit brought b}^ the Equal Employment Opportunity
Commission and the rescinding of a Labor Department subpoena
directed at a union which was supporting the President. The prose-
cutors began their inquiry by obtaining background information and
the names of about 30 people who had served as White House contacts
in the various agencies for the “ Responsiveness Program.” The
prosecutors then requested the FBI to interview White House staff
members allegedly involved, the agency contacts and other witnesses.

67

One of the prosecutors also reviewed the Labor Departments files
regarding the rescinded subpoena.

When additional White House documents became available to
WSPF in spring of 1975, various files were searched for documents
relating to the “ Responsiveness Program” in a further effort to learn
whether violations of laws had occurred. On the basis of this investi-
gation, it was concluded that certain memoranda obtained by the
Senate Select Committee had exaggerated the effect of the “Respon-
siveness Program” and, accordingly, no criminal charges resulted from
WSPF’s inquiries.

A similar investigation probed an allegation that the Department
of Labor had delayed, and, in some matters, also denied the promul-
gation of various occupational health and safety standards in return
for contributions to the President’s campaign. A memorandum un-
covered by Senate Select Committee investigators appeared to sub-
stantiate this charge and led the prosecutors to ask the FBI to inter-
view about 10 individuals about the matter. One witness was also
called before the grand jury. It was concluded on the basis of this
investigation that no violations of criminal law occurred.

The prosecutors also received allegations in March 1974 that White
House officials, for the purpose of assisting President Nixon’s re-
election efforts, had set up the Federation of Experienced Americans
(FEA), an organization sponsoring programs for elderly citizens, and
had made efforts to shift Federal funding to FEA from the National
Council on Senior Citizens and the National Council on Aging, two
established organizations of the same type, which had not supported
the President’s policies and were not expected to support his re-election
campaign. The General Accounting Office (GAO), had conducted an
earlier investigation of FEA and found that White House officials
had brought pressure on Federal agencies to award funds to FEA
and had helped it to obtain a donation from a corporation. The GAO
investigation resulted in the termination of Federal funds to FEA
because of financial improprieties. The prosecutors reviewed the GAO’s
files and, at WSPF’s request, FBI agents interviewed more than 40
Government agency employees and White House and FEA officials
about possible White House efforts to channel funds to FEA and
possible FEA activities in support of the President’s 1972 campaign.
No evidence was developed to support criminal charges.

Investigation of Alleged Mistreatment of Demonstrators

Investigation Into an Assault on Antiwar Demonstrators, Newspaper
articles appearing in June 1973, and information obtained in the
early stages of the Watergate investigation, suggested that officials
of the White House and the Committee to Re-Elect the President

had directed an organized assault on antiwar demonstrators on the
steps of the Capitol building on the evening of May 3, 1972.

The antiwar demonstration in question featured a number of
leading antiwar activists. Coincidentally, but unrelated to the demon-
stration or the assault, a public viewing of former FBI Director
J. Edgar Hoover's coffin in the Capitol Rotunda took place a short
distance from the site of the antiwar demonstration.

The early stages of WSPF's investigation, which began in July
1973, revealed that a group of 10 individuals, some of whom had
been involved in the break-in of Dr. Fielding’s office in California
and some of whom subsequently became involved in the illegal
entries into the Democratic National Committee headquarters at
the Watergate complex, had been present during the assault. Their
transportation from Miami was financed with $3,200 in campaign
funds.

On the basis of this and other evidence, WSPF conducted an
extensive investigation into this incident because of the allegations
that the assault had been ordered by White House officials and be-
cause of the close connection between this event and the first Water-
gate break-in 3 weeks later. It was also considered significant that
the original $1 million plan from which the Watergate burglary evolved
included a proposal for mugging squads to rough up demonstrators.
Thus, the investigation sought to determine any existence or implemen-
tation of a general plan to use paid operatives for the purpose of violent
activity against demonstrators and other anti- Administration activists.

Accordingly, more than 150 witnesses were interviewed including
victims of the assault, witnesses to it, police officers, and White
House and CRP personnel. Witnesses who resided a long distance
from Washington and those of less significance were interviewed by
the FBI. Of those interviewed, some testified before the grand jury.
A request for a thorough search of White House documents relevant
to this investigation was made by Cox in October 1973, but relevant
materials were not made available to WSPF until the spring of 1975.
This investigation consumed a substantial portion of the time of
two attorneys over a 6-month period. On the basis of several factors
cited in Chapter 2, no criminal charges were brought.

Investigation o f Alleged Mistreatment of Demonstrators at Presidential
Appearances . A newspaper story in August 1973 alleged that persons
who appeared to be demonstrators against or opponents of the Nixon
Administration had been excluded or removed from the public coli-
seum in Charlotte, N.C., on the occasion of the President's appearance
there on October 15, 1971, and that this activity had been conducted
by local volunteers from the Veterans of Foreign Wars recruited by
White House advancemen. The prosecutors had previously been told
that advancemen had made similar attempts to keep demonstrators
away from the President as he made public appearances around the

69

country, and they then interviewed a former advanceman about these
general allegations. After the publication of the newspaper story,
WSPF received from a citizens’ group a report containing specific
allegations of mistreatment of demonstrators at various Presidential
appearances, including the Charlotte incident, from 1971 to 1973.

WSPF investigated these charges through office and FBI inter-
views of former CRP and White House officials including the advance-
men, and through an examination of White House tapes and docu-
ments which became available in the spring of 1975. Some of the
witnesses were questioned before a grand jury.

In mid-September 1973, Cox learned that the Civil Rights Di-
vision of the Justice Department was also investigating some of these
same allegations. As a result, arrangements were made between this
office and the Civil Rights Division for a joint effort in which in-
vestigative responsibilities were divided between the two offices.
Major witnesses, however, were interviewed by two attorneys working
together, one from WSPF and one from Civil Rights. The investiga-
tion, conducted over approximately a 3-month period, did not result
in the proof of criminal activity.

Investigation of President Nixon's Tax Returns

Newspaper articles appearing in the summer and fall of 1973
indicated that President Nixon had paid minimal Federal taxes on
substantial income earned during the period 1969 to 1972 because of a
deduction he had taken for the purported gift of his Pre-Presidential
papers to the National Archives. The White House claimed that the
papers had been given before the effective date of a 1969 tax reform
law that greatly reduced the amount allowed as a tax deduction for
such gifts. After considerable public interest and speculation, President
Nixon made public in December his tax returns for the four previous
years, along with supporting financial data and a request that the
Congressional Joint Committee on Internal Revenue Taxation deter-
mine whether he owed additional taxes. Both the Joint Committee
and the Internal Revenue Service investigated the matter.

Late in March 1974, IRS notified the Special Prosecutor that its
inquiry had reached an impasse because of conflicts in the statements
of those principally involved in the matter, and suggested that WSPF
conduct a grand jury investigation. While the IRS inquiry indicated
possible violations of law by former White House staff members
whose activities were clearly within the terms of WSPF’s jurisdiction,
it also indicated the possible involvement of others who were not
covered b}^ the language in WSPF’s charter. To avoid any possible
ambiguity, Jaworski requested and received from Attorney General
Saxbe specific authorization to conduct the entire investigation.
For about 7 months WSPF conducted an investigation to determine

70

the facts concerning the alleged gift and whether efforts had been
made to conceal the circumstances of the transaction. To this end,
the prosecutors interviewed and called before the grand jury a number
of witnesses, including former White House staff members and officials
of the General Services Administration and its National Archives and
Records Service. They also received assistance from others who had
looked into some of the questions, including the IRS, the Joint
Committee, and the House Judiciary Committee.

The WSPF investigation resulted in the filing of charges against
three people. Former White House deputy counsel Edward L. Morgan
pleaded guilty on November 8, 1974, to conspiring to defraud the
United States by participating in the preparation of backdated
documents. He was sentenced to 2 years imprisonment, all but 4
months of which was suspended. On February 19, 1975, the grand
jury filed a four-count indictment charging Frank DeMarco, a Los
Angeles lawyer who had helped prepare President Nixon’s tax returns,
and Ralph G. Newman, a Chicago book dealer and appraiser who
had estimated the value of his papers for tax purposes, with having
engaged along with Morgan in a conspiracy to defraud the United
States. The indictment also charged DeMarco with making false
statements to IRS agents and with obstructing the Joint Committee’s
inquiry, and Newman with assisting in the preparation of a false
document filed with a tax return. After extensive legal argument,
including an unsuccessful mandamus petition by WSPF to the Court
of Appeals, the defendants obtained separate trial settings, DeMarco
in Los Angeles and Newman in Chicago. As of the writing of this
Report, the Los Angeles trial was scheduled for September 16 and
the Chicago trial for October 28, 1975.

CAMPAIGN CONTRIBUTIONS

Investigations of 1972 Campaign Financing and Related Matters

Beginning in June 1973, the Campaign Contributions task force
systematically examined the campaign finances of major 1972 Re-
publican and Democratic Presidential candidates. This examination
included the investigation of several hundred separate transactions,
including corporate and labor union contributions, recipients’ non-
reporting of contributions and expenditures, and alleged quid pro quo
relationships between contributions and Government actions.

The task force began its inquiries on the basis of the following
major sources of information:

1. A list of persons who had made large contributions to President
Nixon’s reelection campaign before April 7, 1972 — the effective date
of a new campaign law which required that contributions be reported
publicly. The existence of this list, which was kept by the President’s

71

secretary, was initially disclosed in a civil suit brought by Common
Cause against the Finance Committee to Re-Elect the President
(FCRP). WSPF later obtained the list from the White House.

2. Reports of pre-April 7 contributions to several Democratic
candidates, which the candidates had made public.

3. Reports of post-April 7 contributions to candidates of both
parties which had been filed with the General Accounting Office
pursuant to the new law.

4. Referrals from the Internal Revenue Service.

5. Information obtained in the Watergate investigation about
the sources and disposition of campaign funds used in the Watergate
break-in and cover-up.

6. Newspaper articles, letters from citizens (many of them anony-
mous), and similar sources.

A variety of investigative methods were used. The prosecutors
interviewed major Republican and Democratic fundraisers, including
Herbert Kalmbach of FCRP, who cooperated with the office under an
agreement involving his guilty plea to two charges (described else-
where in this section). Agents of the FBI and IRS examined the cam-
paign financial records of the major Presidential candidates and those
Congressional candidates whose campaign finances, for various
reasons, became relevant to matters directly within the jurisdiction
of the Special Prosecutor. The prosecutors sent letters to about 50
known contributors asking them to telephone the office and answer
certain questions. Many contributors were interviewed in person in
WSPF’s offices. FBI agents interviewed hundreds of employees and
financial officers of corporations and unions and examined bank and
corporate records; IRS agents took similar steps in cases that seemed
to involve possible tax violations. In some cases, particularly when
there was a suspicion of an explicit quid pro quo relationship between
contributions and Government actions, WSPF attorneys conducted
interviews of contributors, fundraisers, and Government officials.
Witnesses were also called before the grand jury, especially when it
appeared that attempts were being made to obstruct an investigation .

An important source of information in these inquiries was the dis-
closure by a number of corporations of their own illegal contributions.
On July 6, 1973, American Airlines’ board chairman told WSPF and
publicly announced that the corporation had made an illegal contribu-
tion of corporate funds to the President’s re-election campaign. Special
Prosecutor Cox then issued a public invitation to other corporate
executives to make similar disclosures, promising that:

[W]hen corporate officers come forward voluntarily and earty to

disclose illegal political contributions to candidates of either

party, their voluntary acknowledgement will be considered as a

mitigating circumstance in deciding what charges to bring.

72

Several corporations responded to this invitation shortly after it
was issued, and others made similar disclosures in the ensuing months
(in some cases after learning that they were under investigation). The
corporations were required to disclose all corporate contributions to
candidates for Federal office within the period of the then statute of
limitations (1968-1973). The corporations were also required to dis-
close the basic method they had used to generate the contributed
funds, including accumulations of cash in political “slush funds,”
usually from overseas sources, and the use of bonus payments and
expense accounts to reimburse employees for contributions made in
their own names. Interviews were conducted to determine those cor-
porate officers who were aware of, or authorized, the contribution and
also to learn what matters the corporation had pending before Federal
Government agencies. The prosecutors also investigated the possi-
bility of pressure on employees to donate to corporate “good Govern-
ment funds’ 7 which could be used to make otherwise legal political
contributions. In addition to the criminal charges WSPF brought
against such corporate “volunteers,” other agencies such as IRS and
the Securities and Exchange Commission conducted investigations
and took action as a result of these disclosures to WSPF.

On October 17, 1973, Cox announced an office policy on bringing
charges against corporate officers who had made voluntary disclosure
of corporate contributions: the corporation would be charged with
violating Section 610 of Title 18 of the U.S. Code, which prohibits
corporate contributions, and the primarily responsible corporate
officer would be charged under the same statute with consenting to
the making of such a contribution. The officer’s cooperation in bringing
the violation to WSPF’s attention would be reflected in a one-count
misdemeanor charge of “non-willful” consent, as distinct from the
felony of “willful” consent, and in a decision not to charge other
officers or include additional counts. Variations of this pattern would
be based on unusual degrees of cooperation, on obstructive conduct,
or on other unique circumstances. The corporations which made
voluntary full disclosure of illegal contributions at a point when little
or no investigative work had been done regarding their activities
were charged and sentenced as follows :

— On October 17, 1973, American Airlines pleaded guilty to a
one-count violation of Section 610 and received a fine of $5,000.
The board chairman was not charged because he had been the first
corporate officer to make such a disclosure, and had done so before
Cox had issued his invitation.

— On the same date, Goodyear Tire and Rubber Company pleaded
guilty to one count of violating Section 610 and was fined $5,000;
the Chairman of Goodyear, Russell DeYoung, pleaded guilty to a
one-count misdemeanor, Section 610 violation, and was fined $1,000.

73

— On the same date, Minnesota Mining and. Manufacturing Com-
pany pleaded guilty to a one-count Section 610 violation and was
fined $3,000; the company’s chairman, Harry Heltzer, pleaded guilty
to a one-count misdemeanor of violating Section 610 and received a
$500 fine.

— On November 12, 1973, Braniff Airways Inc., pleaded guilty to
one count of violating Section 610 and was fined $5,000; Braniff’s
chairman, Harding L. Lawrence, pleaded guilty to a one-count
misdemeanor, Section 610 charge, and was fined $1,000.

— On November 13, 1973, Ashland Petroleum Gabon Corp., a
subsidiary of Ashland Oil, Inc., pleaded guilty to a one-count Section
610 violation and was fined $5,000. Because his disclosure had closely
followed American Airlines, Ashland’s chairman, Orin E. Atkins,
was allowed to plead nolo contendere to a one-count Section 610,
misdemeanor charge and was fined $1,000

— On the same date, Gulf Oil Corporation pleaded guilty to one
count of violating Section 610 and received a $5,000 fine; Claude C.
Wild, Jr., a vice-president of Gulf, pleaded guilty to a one-count
misdemeanor under Section 610 and was fined $1,000.

— On December 4, 1973, Phillips Petroleum Company pleaded
guilty to one count of violating Section 610 and was fined $5,000;
chairman William W. Keeler pleaded guilty to a one-count mis-
demeanor, Section 610 violation and received a $1,000 fine.

— On December 19, 1973, Carnation Company pleaded guilty
to a one-count Section 610 violation and was fined $5,000; its chairman,
H. Everett Olson, pleaded guilty to a one-count misdemeanor viola-
tion of Section 610 and received a $1,000 fine.

— On March 7, 1974, Diamond International Corporation pleaded
guilty to a one-count violation of Section 610 and received a $5,000
fine; Ray Dubrowin, the corporation’s vice president, pleaded guilty
to a one-count misdemeanor under Section 610 and was fined $1,000.

— On June 27, 1974, National By-Products, Inc., pleaded guilty
to one count of violating Section 610 and was fined $1,000. The
responsible officer was not charged because the contribution had been
very small, his disclosure had been motivated entirely by conscience,
and under the circumstances of the contribution, success in an investi-
gation here had been highly unlikely.

— On October 8, 1974, Greyhound Corporation pleaded guilty
to a one-count, Section 610 violation and was fined $5,000. No corporate
officer was charged because there was substantial evidence that those
involved had believed their conduct to be legal and had relied on the
advice of counsel to that effect.

— On December 30, 1974, Charles N. Huseman, of HMS Electric
Corporation, pleaded guilty to a one-count violation of Section 610
as a misdemeanor and was fined $1,000. The corporation was not

74

charged because it had been acquired by another corporation and
dissolved after the violation.

— On January 28, 1975, Ratrie, Robbins, and Schweitzer, Inc.
pleaded guilty to a one-count Section 610 violation and was fined
$2,500. Harry Ratrie and Augustus Robbins, III, each pleaded guilty
to a one-count, Section 610 misdemeanor and received a suspended
sentence. Two officers were charged because they appeared to be
equally culpable.

As the work of the task force progressed, it became clear that there
were different degrees of voluntary cooperation. The early volunteers
were aware that they might face investigation because their names or the
names of their corporations appeared on campaign records WSPF
had obtained. Rather than constructing “cover stories, ” they decided
to acknowledge their conduct. Some other “volunteers” did not have
to guess that their contributions might be under investigation. WSPF
had already begun active inquiries when they decided to make their
disclosures. These belated “volunteers” were charged and sentenced
as follows :

— On May 1, 1974, Northrop Corporation pleaded guilty to a
one-count violation of Section 611 of Title 18, which prohibits cam-
paign contributions by Government contractors, and was fined
$5,000. Northrop was charged under this statute because a large
percentage of its total business was under Government contract.
Northrop’s chairman, Thomas V. Jones, pleaded guilty to a charge
of willfully aiding and abetting in the illegal contribution and was
fined $5,000. James Allen pleaded guilty to a one-count misdemeanor
under Section 610 and received a $1,000 fine. Two officers were
charged, one of them with a felony, because of obstructive conduct
in the course of the investigation.

—On May 6, 1974, Lehigh Valley Cooperative Farmers pleaded
guilty to one count of violating Section 610 and was fined $5,000.
The Cooperative’s president, Richard L. Allison, pleaded guilty
on May 17 to a one-count, Section 610 misdemeanor and received
a $1,000 fine which was suspended, and Francis X. Carroll pleaded
guilty May 28 to a misdemeanor charge of aiding and abetting a
violation of Section 610, receiving a suspended sentence. Two persons
were charged in this matter because of relatively minor obstructive
conduct.

— On September 17, 1974, LBC & W, Inc., pleaded guilty to a
one-count violation of Section 611 and received a $5,000 fine; a
substantial portion of the firm’s total business was under Government
contract. William Lyles, Sr., pleaded guilty to two misdemeanor
counts of violating Section 610 and was fined $2,000.

— On October 23, 1974, Time Oil Corporation pleaded guilty
to two counts of violating Section 610 and was fined $5,000; its

president, Raymond Abendroth, pleaded guilty to two misdemeanor
Section 610 counts and was fined $2,000.

— On December 20, 1974, Ashland Oil, Inc. pleaded guilty to
five counts of violating Section 610 and was fined $25,000. This
second prosecution of Ashland resulted from its failure to make full
disclosure during the initial investigation. No corporate officer
was charged because the officers were not the persons primarily
responsible for withholding the information.

Some alleged corporate donors were prosecuted solely as a result
of investigations with no voluntary disclosures. A referral from the
IRS resulted on October 19, 1973, in the charging of Dwayne Andreas
and the First Interoceanic Corporation with four counts of violating
Section 610. They were acquitted by a judge in Federal court in
Minnesota on July 12, 1974.

An investigation into the contribution activity of American Ship
Building Company resulted in the indictment on April 5, 1974, of the
corporation and its chairman, George M. Steinbrenner, III, on a charge
of conspiring to make corporate contributions to several candidates
and campaign organizations. In addition, the corporation was charged
with one count of violating Section 610, and Steinbrenner was charged
with five felony counts of violating Section 610, two counts of aiding
and abetting the making of false statements to criminal investigators,
four counts of obstructing justice and two counts of obstructing a
criminal investigation. John H. Melcher, Jr., another officer of the
corporation, pleaded guilty April 18, 1974, to a charge of being an
accessory after the fact to a corporate contribution and was fined
$2,500. After plea negotiations with WSPF, American Ship Building
pleaded guilty on August 23 to the charges against it and was fined
$20,000. On the same date, Steinbrenner pleaded guilty to the felony
conspiracy charge and to a charge of being an accessory after the fact
to a corporate contribution, receiving a fine of $15,000. The remaining
charges against Steinbrenner were dropped following his plea of guilty.

The investigation into the sources of campaign funds which came
to be used in the Watergate cover-up resulted in a guilty plea of
Tim M. Babcock, an executive of Occidental Petroleum Corp. and
former Governor of Montana, on a charge of making a campaign
contribution in another person's name, on December 10, 1974. He
was sentenced to a year in prison, with all but 4 months suspended,
and a $1,000 fine. His sentence is now on appeal on the question of
whether the particular sentencing provision applied here legally
permits imprisonment.

The investigations into corporate and union contributions and
other illegal activities by donors of campaign funds resulted in no
additional prosecutions as of September 1975 (although a few matters
are still open). A few other corporations were found to have made
relatively small contributions of corporate funds and were not pros-

76

ecuted because of the small amounts involved and for other reasons
detailed in Chapter 2. The prosecutors reviewed all contributions
identified with unions or their officers in search of patterns that might
indicate a union source for individual contributions, but found only
one suspicious pattern; the investigation did not develop sufficient
evidence to bring charges.

The task force also looked into possible illegal conduct of people
and organizations receiving campaign funds on behalf of candidates.
The investigation of American Ship Building Company’s contributions
resulted in a plea of guilty by “DKI for 74,” a committee supporting
the re-election of Senator Daniel Inouye, to a charge of failing to
report a contribution. The sentence was suspended. The investigation
and eventual disclosure of a contribution of Time Oil Corporation
resulted in a plea of guilty on June 11, 1975, by former Representative
Wendell Wyatt, who had headed the Oregon Committee to Re-
Elect the President, to a charge of failing to report a campaign
expenditure. He was fined $750.

The investigation of the activities of the Finance Committee to
Re-Elect the President resulted in a plea of guilty by its former
chairman, Maurice Stans, who had served as Secretary of Commerce
in the Nixon Administration, to three counts of failure to report
contributions and expenditures of the Committee and two counts of
accepting corporate contributions, all misdemeanors. Stans was fined
$5,000. No criminal charges were brought against other FCRP officials
or fundraisers for other 1972 candidates.

The task force also investigated over 30 allegations of improper
influence on Government actions by contributors to the President’s
1972 campaign, including Justice Department actions in antitrust
matters, Environmental Protection Agency decisions in enforce-
ment proceedings, Price Commission and Cost of Living Council
rulings, the awarding of bank charters, decisions on airline routes
and mergers, decisions on product safety standards, the exercise of
the President’s clemency power, the handling of a criminal prosecu-
tion, decisions on oil import allocations, and a decision to raise milk
price supports (discussed elsewhere in this section). None of these
inquiries developed sufficient evidence to support criminal charges.

Other allegations involving Democratic campaign financing
were investigated, including a charge that the Democratic National
Committee had received corporate contributions in the form of dis-
counts in the settlement of its 1968 campaign debt. These inquiries
did not produce sufficient evidence to support criminal charges. An
investigation into the failure of the Democratic National Com-
mittee to report correctly a large contribution resulted in no charges
because the statute of limitations, as amended retroactively in 1974,
barred prosecution.

77

591-439 0 - 75-6

Investigation Info Alleged Sales ol Ambassadorships

Information obtained from major campaign contributors and
fundraisers in early summer 1973, and a document obtained from
the White House, suggested that officials of the White House and the
Finance Committee to Re-Elect the President (FCRP) might have
promised ambassadorial appointments in return for large campaign
contributions. A full-scale inquiry into the alleged sales of ambas-
sadorships commenced in the autumn of 1973.

The investigation centered on possible promises to certain indi-
viduals who had made large contributions to President Nixon's
re-election. Because the prosecutors felt that favor-selling public
officials would be more culpable by reason of their public trust than
favor-seeking contributors, if such illegal conduct had occurred, the
investigation initially focused on obtaining the testimony of the
contributors. However, the first admission that an ambassadorship
had been promised in return for a campaign contribution came from
fundraiser Herbert Kalmbach, who pleaded guilty on February 24,
1974, to a charge of promising employment as a reward for political
activity. Kalmbach, who pleaded guilty to another charge (described
elsewhere in this section) at the same time, was sentenced to 6-months
imprisonment.

On March 14, 1974, the grand jury subpoenaed White House
documents relating to the possible appointments and contributions
of four persons, and the White House supplied a number of documents
which provided additional evidence. Some of the contributors even-
tually cooperated with the office and furnished information, as did
former FCRP chairman Maurice Stans in connection with his guilty
plea to other charges (described elsewhere in this section). The
contributors, former White House officials, and campaign fundraisers
were questioned before the grand jury. Although contributors of
large campaign sums obviously received Administration responses to
their desires to serve as ambassadors, a crime is not proved unless
the prosecution can show a prior quid pro quo arrangement, i.e., a prior
commitment of support for the position in exchange for a forthcoming
contribution. Such proof is available only if one of the participants
in such a conversation admits the express commitment. However,
each official and fundraiser involved denied having made promises
of appointments and WSPF was unable to prove the contrary. Al-
though one matter was still under investigation as this Report was
written, the evidence in other matters was insufficient to support any
additional criminal charges.

"Townhouse" Investigation

Between 1970 and 1972, press accounts indicated that the White
House had sponsored a secret program for raising and disbursing funds

78

for selected Republican candidates in the 1970 Congressional elections.
This program operated from a Washington townhouse and ultimately
became known as “Townhouse.” The operation was not thought to
be a matter within WSPF’s jurisdiction until August 1973, when a
separate investigation brought to light more details about the manner
in which it had been conducted. During the early fall of 1973, Attorney
General Richardson informally referred the “Townhouse” investiga-
tion to WSPF, and the referral was formalized by Acting Attorney
General Bork in January 1974.

The “Townhouse” inquiry began with interviews of Jack Gleason,
a former White House aide who had played a principal role in the
project. He supplied records showing that over $3,000,000 had been
received and disbursed during the operation. Subsequent investiga-
tion revealed these details: fundraiser Herbert Kalmbach had
obtained pledges of large amounts from various contributors, informing
them that Gleason would contact them about payment; Gleason
then instructed the contributors to send their checks to him, and he
forwarded the funds to particular campaigns as instructed by members
of the White House staff; he reported principally to White House
aide Harry Dent who, in turn, reported to other White House officials.

After research into the legality of the operation, the prosecutors
concluded that those involved had constituted a political committee
which had unlawfully failed to elect officers and file financial reports.
Their failure to do so, the secrecy with which they conducted their
operations, and the large amounts of money involved led the prose-
cutors to initiate a grand jury investigation in the fall of 1973. In
connection with the grand jury’s inquiry, the prosecutors asked the
White House to supply additional “Townhouse” records which had
been transferred to White House files. The records were not produced
until March 1974.

Kalmbach, who was cooperating with WSPF in a number of
its investigations, pleaded guilty on February 25, 1974, to a felony
violation of the Corrupt Practices Act. Thereafter, he furnished
additional documents from his files regarding the “Townhouse”
project and provided further information during office interviews
and grand jury appearances.

On November 15 and December 11, 1974, respectively, Gleason
and Dent pleaded guilty to misdemeanor violations of the Corrupt
Practices Act. Both received sentences of 1 month’s probation.

The prosecutors also looked into the possible criminal liability
of others involved in the 1970 “Townhouse” project, but brought
no further charges against them.

79

Milk Fund Investigation

In late Jufy 1973, WSPF’s campaign contributions task force
began investigating possible illegal activities involving Associated
Milk Producers, Inc. (AMPI), the Nation’s largest organization of
dairy farmers. The office’s interest in the matter resulted from press
reports and the filing of a civil suit by Ralph Nader alleging that a
1971 Administration decision to raise milk price supports had been
influenced by an AMPI commitment of substantial funds to President
Nixon’s 1972 campaign.

The attorneys assigned to this investigation functioned for most
purposes as a separate task force within the office. They began by
interviewing AMPI’s general manager and other employees, and
examining evidence obtained in the Nader suit. Then, having learned
from a former AMPI employee of a series of diversions of AMPI
funds which evidently had been contributed illegally to various politi-
cal candidates, they obtained grand jury testimony by AMPI officials
Bob Lilly and Robert Isham who, under immunity, provided infor-
mation concerning four areas of possible criminal conduct by persons
associated with AMPI.

The first of these areas was the allegation that AMPI had con-
cealed a 1969 contribution of $100,000 to President Nixon’s 1972
campaign by using a “dummy” to deliver the funds. Investigation of
the 1969 payment resulted in charges against AMPI and Harold
Nelson, its former general manager. Nelson’s plea of guilty, described
more fully below, included admissions that he had made the payment
in order to gain “access” to the White House for AMPI and that he
had attempted to conceal the ultimate source of the contribution.

On the basis of information they had received, the prosecutors
also investigated other political contributions b}^ AMPI. The investi-
gation uncovered evidence of numerous contributions, usually made
through conduits to hide the true source of the money. For example,
it appeared that AMPI employees, attorneys, or consultants had made
contributions in their own names and then, by prior agreement, had
been reimbursed by AMPI in the form of “bonuses” or fees. AMPI also
disguised political contributions by using corporate funds to pay for
services provided to candidates by third parties, and assigning its em-
ployees to work in favored campaigns while continuing to be paid by
AMPI. The evidence gathered in this part of the investigation led to
a number of criminal dispositions:

—On July 24, 1974, David Parr, formerly special counsel to AMPI,
pleaded guilty to a felony conspiracy to make corporate contributions.
In acknowledging his guilt, he admitted his role in causing AMPI to
contribute a total of $220,000 to eight different candidates in 1968,
1970, and 1972. Parr was fined $10,000 and sentenced to 2-years im-
prisonment. All but 4 months of the prison term were suspended.

80

— AMPI’s former general manager Nelson pleaded guilty on July
31, 1974, to felony charges of conspiracy to make corporate contribu-
tions and making an illegal payment to a public official. He admitted
that he had caused AMPI to make contributions totaling $330,000 to
seven different campaign funds in 1968, 1969, 1970 and 1972, and had
approved a payment to another party in 1971, allegedly for the
benefit of John Connally, Secretary of the Treasury. Nelson was sen-
tenced to pay a $10,000 fine and serve a 2-year prison term, with all
but 4 months suspended.

— On August 1, 1974, AMPI pleaded guilty to conspiracy to make
corporate campaign contributions, and the making of five such contri-
butions totalling $280,000, and was fined the $35,000 maximum.

— Norman Sherman and John Valentine, who had operated a com-
puter service and had received $84,000 from AMPI for services pro-
vided to several candidates, each pleaded guilty on August 12, 1974,
to misdemeanor charges of aiding and abetting illegal corporate con-
tributions. Each was fined $500.

— Jack Chestnut, the manager of Hubert Humphrey’s 1970 Senate
campaign in Minnesota, was indicted on December 23, 1974, for felo-
niously aiding and abetting a corporate contribution by arranging for
AMPI to pay for the services of a New York advertising firm to the
Humphrey campaign. At WSPF’s request after the indictment,
Chestnut’s trial was conducted in May 1975 by the U.S. Attorney’s
office for the Southern District of New York, and resulted in his con-
viction and a 4-month prison sentence. The conviction is now on
appeal.

— On December 19, 1974, Stuart Russell, an Oklahoma City
attorney retained by AMPI, was indicted for conspiracy and two
counts of aiding and abetting the making of corporate contributions.
The charges were based on evidence of his major role as a conduit for
political contributions of AMPI funds. He was convicted in July 1975
on all three felony counts after a trial in San Antonio, Texas, and
received a 2-year prison sentence. His appeal is pending.

The third area of investigation involving AMPI concerned events
surrounding the Administration’s 1971 decision to raise milk price
supports and AMPI’s commitment of funds for the 1972 campaign,
but despite an extensive probe, the prosecutors were unable to obtain
sufficient evidence to recommend criminal charges against anyone.

The final area of the investigation of AMPI’s activities concerned
the allegation that former Treasury Secretary Connally had accepted
illegal payments from AMPI following the Administration’s 1971
decision to increase milk price support levels. This investigation
resulted in the charge against Nelson, described above, to which he
pleaded guilty. In addition, Jake Jacobsen, a Texas attorney formerly
retained by AMPI, was charged on February 21, 1974, with having
made false declarations before the grand jury. This charge was dis-

81

missed as technically defective on May 3, but Jacobsen was indicted
again on July 29, 1974, for making an illegal payment to a public
official. He pleaded guilty on August 7 and is awaiting sentence.
Connally was also named as a defendant with Jacobsen in the July 29
indictment. He was charged with receiving illegal payments on two
occasions while he was Secretary of the Treasury, conspiring with
Jacobsen to commit perjury and obstruct justice in connection with
investigations of those payments, and making false declarations to
the grand jury. Prior to trial, the court ruled that the charges of
accepting illegal payments should be tried first and separately.
Connally was tried on these charges and found not guilty by a jury
on April 17, 1975. Because the jury had also heard all the evidence the
prosecutors possessed for any future trial on the other charges against
Connally, those charges were dismissed on April 18.

Hughes-Rebozo Investigation

In October 1973, WSPF began receiving from the Internal Revenue
Service the preliminary results of its investigation into an unreported
cash contribution of $100,000 by industrialist Howard R. Hughes
delivered by a Hughes representative to Charles G. Rebozo, a close
friend of President Nixon. The funds had been delivered in two equal
installments in 1970, but according to Rebozo's public explanation,
the identical cash had been returned to Hughes in June 1973.

Since July 1973, the Senate Select Committee had also been con-
ducting an investigation which was essentially parallel to that of the
IRS. In December 1973 and thereafter, the Committee questioned
numerous witnesses in Executive Session about the Hughes contribu-
tion. In late March one witness, Herbert W. Kalmbach, formerly the
personal attorney for Richard Nixon, alleged that on April 30, 1973,
Rebozo had told him of having disbursed some of the Hughes money
to a friend and family members of the President, and others. Investi-
gators also searched to see whether the Hughes cash that had been
returned by Rebozo in 1973 bore serial numbers that indicated the
cash had been in public circulation at the time of the alleged deliveries
by Hughes' representative to Rebozo in 1970.

On the basis of Senate and IRS information, the Special Prose-
cutor's office launched a wider investigation. Although the charter of
the Special Prosecutor's office included authority to investigate all
matters arising out of the 1972 Presidential election campaign, for
which, according to Rebozo, the Hughes contribution had been
intended, it was determined that there should be some clarification of
WSPF's jurisdiction to investigate the matter. By letter dated
April 15, 1974, the Attorney General specifically assigned to the Special
Prosecutor the responsibility for conducting an investigation into the
Hughes contribution and related matters. At about the same time,

82

the Internal Revenue Service referred its investigation to the Special
Prosecutor along with an interim report recommending a grand jury
inquiry to resolve conflicts in the testimony of witnesses about the
delivery and purpose of the Hughes money, as well as its possible use,
and to seek evidence of other such secret contributions.

Three broad categories of inquiry were pursued: any possible
bribery and campaign contribution violations, any income tax viola-
tions, and any perjury or false statements arising from prior testimony.
A grand jury investigation was begun in late April 1974 with the
issuance of numerous subpoenas for documents.

The Senate investigation also continued and in May 1974, a former
aide to H. R. Haldeman, Lawrence M. Higby, testified before the
Committee that Haldeman had described to him an offer which the
President had made to pay $400,000 from funds under Rebozo's
control, for Haldeman's anticipated legal fees.

The Select Committee's investigation ended in July 1974, when the
Committee published a lengthy staff report describing the information
disclosed during its investigation. The report included allegations:
(1) that in June 1972 Rebozo had used funds, which were left from
the 1968 campaign and kept in one of his bank accounts, to pay for
diamond earrings for Mrs. Nixon; and (2) that Rebozo had paid for a
swimming pool and related improvements to the President's Key
Biscayne residences with about $25,000 cash from unknown sources
in 1972.

During May and June 1974, the Special Prosecutor's office obtained
all documents from the files of the Senate Select Committee and the
Internal Revenue Service relating to Rebozo's finances. On the basis
of these materials, the grand jury inquiry was broadened and nearly
200 subpoenas for documents were issued between April 1974 and
July 1975. In addition, 28 witnesses testified before the grand jury,
75 persons were questioned by the Special Prosecutor's office and 47
persons were interviewed in the field by a team of specially detailed
agents of the Internal Revenue Service. In all, 123 different persons
were questioned, many of them repeatedly. Included among those
questioned were officials and employees of the White House, the
Finance Committee to Re-elect the President, Hughes' Summa
Corporation, the Key Biscayne Bank, and many others.

The IRS team also assisted the Special Prosecutor's office in
evaluating the voluminous financial records obtained. Between April
and December 1974, the agents and Assistant Special Prosecutors
analyzed thousands of pages of records received from more than 240
sources.

Secondary sources of information also were systematically and
exhaustively utilized. This included records from banks, accountants,
attorneys, various business partners and associates, business firms,
and so forth. Second, voluminous records were reviewed of telephone

83

calls, travel, meetings with Administration officials, and correspond-
ence with various persons. Third, persons suspected of making secret
contributions were questioned and their documents reviewed. Fourth,
tapes and hundreds of memoranda and other documents from the
White House files were studied for any references to relevant financial
transactions or any actions involving soliciting or use of funds for
President Nixon.

Extensive investigation was undertaken concerning the source and
application of all funds which required examination in order to resolve
the matters raised in the Senate Select Committee materials. Docu-
ments and information were obtained which had not been available
to the Committee, and they helped resolve some questions which
were raised by the Senate report.

Investigation was also pursued into the suggestion in an April 17,
1973, Presidential tape that Rebozo maintained a secret fund of about
$300,000. At the trial of the Watergate cover-up defendants, prose-
cutors used a transcript of this tape of a conversation among President
Nixon and his aides H. R. Haldeman and John D. Ehrlichman. In the
conversation, President Nixon offered to pay $200,000 to $300,000
for their legal fees from funds to be provided by Rebozo.

After all investigation was completed, and the evidence had been
evaluated by the prosecutors who ran the investigation and by the
General Counsel’s office of the Internal Revenue Service, it was con-
cluded by the prosecutors that the evidence would not support an
indictment.

Notional Hispanic Finance Committee Investigation

Information provided by the Senate Select Committee indicated
the possibility that former staff members of the White House, the
Committee to Re-Elect the President, and the National Hispanic
Finance Committee (an arm of the Finance Committee to Re-Elect
the President) had tried to influence the Government’s grant-making
and contracting processes to obtain the support of members of the
Spanish-speaking community for the President’s reelection. Although
these allegations were similar to those related to the Administration’s
“ Responsiveness Program” (see discussion of “ Responsiveness Pro-
gram”), they were investigated by personnel of a different task force
because they seemed to involve principally representatives of the
President’s campaign organization.

WSPF investigated several allegations of possible criminal conduct
including :

— That the award of Government contracts to a particular firm
had been curtailed because the firm’s president had declined to support
President Nixon’s re-election campaign; one means of this curtailment
had been the “graduation” of the firm beyond the eligibility require-

84

ment for the Small Business Administration (SBA) program which
awards Government contracts to minority-owned firms outside the
normal bidding process.

— That a builder who was having legal difficulties, in a housing
program for low-income families subsidized by the Federal Housing
Administration, had been solicited for a $100,000 contribution in re-
turn for the clearing up of his legal problems.

— That a prominent Mexican-American citizen had been offered
a Federal judgeship in exchange for a campaign contribution.

— That improper influence, possibly involving persons connected
with the Hispanic Finance Committee, had existed in the awarding of
grants, SBA loans, and Government contracts.

These inquiries consumed about one year of an attorney’s time, but
did not produce sufficient evidence to support criminal charges.

OFFICE OF COUNSEL TO THE SPECIAL PROSECUTOR

The office of counsel to the Special Prosecutor was organized to
deal with numerous legal and policy issues, many of them novel,
that confronted the Special Prosecutor’s office. These issues required
counsel to function in four basic areas: giving legal advice to task
forces, managing appeals and civil matters, advising the Special
Prosecutor on legal and policy questions, and assisting in liaison
with other agencies.

Legal Advice to Task Forces . The counsel’s office gave each task
force advice on particular legal issues that arose during the course
of investigations, helped design charges based on the facts developed
and the applicable law, and provided legal assistance during trials.
In addition to providing the legal research needed to conduct investi-
gations and prosecutions, the Counsel’s office insured that the task
forces would take consistent legal positions on common issues.

Management of Litigation. The counsel’s office supervised the prepa-
ration of and reviewed all pretrial and post-trial motions and appellate
briefs (also including appeals from the 1973 convictions of the
Watergate break-in defendants) in prosecutions and appeals stemming
from WSPF trials. Counsel also conducted some of the Special
Prosecutor’s litigation. For example, the Counsel directed litigation
over grand jury and trial subpoenas for Presidential tapes, the grand
jury report submitted to the House Judiciary Committee in connection
with its impeachment inquiry, and access to White House tapes and
documents after President Nixon’s resignation.

Legal and Policy Advice to the Special Prosecutor. The Office of
Counsel regularly consulted with and advised the Special Prosecutor
on legal issues requiring his decision. In this regard, counsel reviewed
each indictment before it was presented to the Special Prosecutor for

his consideration and gave his recommendation as to which, if any,
charges should be brought in each proposed prosecution or other
disposition of liability (such as a guilty plea). In each case, this in-
volved a review of the prosecution memorandum prepared by the
task force and an analysis of the facts developed in light of the applicable
law to determine the likelihood of successful prosecution. The Office
also helped formulate standards for questioning witnesses, bringing
criminal charges, and accepting guilty pleas. Finally, counsel directed
all research into the question of whether an incumbent President
could be indicted and into the validity of the pardon granted to
former President Nixon.

From time to time, the Counsel's office was also consulted on legal
and policy issues not directly related to the prosecution function.
These included relationships with the White House and the issue of
executive privilege generally, relationships with the Senate Select Com-
mittee and the House Judiciary Committee concerning the exchange
of information and the effect of their proceedings on the office's
prosecutions (particularly with regard to pre-trial publicity). The
Counsel's office also had a major role in WSPF’s review of pending
legislation related to the Special Prosecutor's work, such as the Grand
Jury Extension Act, proposed legislation to establish an independent
special prosecutor, and proposed legislation concerning the scope of
the Special Prosecutor's final report.

Liaison With Other Agencies . — In addition to assistance in liaison
with other agencies, including the White House counsel's office, divi-
sions of the Department of Justice and Congressional staffs, Counsel's
office acted as liaison with bar associations seeking information for use
in bar disciplinary proceedings involving attorneys who had been
convicted or investigated by WSPF.

86

Relations With Presidents
and White House Staffs

EFFORTS TO OBTAIN EVIDENCE
Early Requests for Documents

During his confirmation hearings in May 1973, Attorney General-
designate Elliot Richardson expressed his belief that the Special
Prosecutor would gain access to Presidential papers without litigation.
He said:

[F]rom all I have seen and from the President’s statements, he
intends that whatever should be made public in terms of the pub-
lic interest in these investigations should be disclosed.

Nevertheless, at Cox’s insistence, in order to formalize and reinforce
his independence to challenge any withholding of information, the
guidelines for his office granted the Special Prosecutor “full authority”
in “determining whether or not to contest the assertion of ‘Executive
Privilege.’ ”

The first exchange of letters occurred on May 30, when Cox
wrote to White House counsel J. Fred Buzhardt to confirm an earlier
telephone request that all White House files related to the Special
Prosecutor’s investigation be kept “secure.” Buzhardt responded that
certain files had been placed under the protection of the FBI on
April 30, but that the “handling, protection and disposition of
Presidential Papers is, of course, a matter for the decision of the Presi-
dent.” In the months that followed, the White House repeatedly
delayed their responses to the Special Prosecutor’s requests for docu-
ments by citing the need for a personal decision of the President.

On June 6, Cox and Special Consultant James Vorenberg
met with Buzhardt, White House counsel Leonard Garment, and
Charles Alan Wright, a consultant to the White House counsel’s
office. At this meeting Wright stated his understanding that the doc-
trine of executive privilege gave the President an absolute right to
refuse to disclose in either judicial or congressional proceedings any
confidential communications between the President and his advisers
and any memoranda generated by White House staff members con-
cerning the constitutional duties of the President.

87

The issue of executive privilege soon arose in a concrete context.
Assistant Attorney General Henry Petersen refused to discuss with
the Special Prosecutor the exact content of conversations that he
had had with the President, on the grounds that the conversations
were perhaps subject to attorney-client privilege. Cox requested that
Buzhardt determine whether the President would assert any “claim
of legal privilege or other confidential relationship” that would
prevent Petersen or former Attorney General Richard Kleindienst
from fully disclosing their relevant conversations with him. In addi-
tion, Cox requested access to the tape recording of an April 15 con-
versation between the President and former White House counsel
John Dean; evidence indicated its prime relevance to the cover-up
investigation. In the next few days Cox also made requests for:
(a) an inventory of the files of 12 Nixon aides and Administration
officials; (b) all logs and diaries reflecting meetings and telephone
calls between the President and 15 specified individuals; and (c) a
letter explaining the administrative organization and procedures of
the White House and listing the names of staff members of key Nixon
aides.

Buzhardt responded with President Nixon's view that all of his
discussions with Petersen and Kleindienst were within “both executive
privilege and the attorney-client privilege,” but said that the President
had decided to waive all applicable privileges as to these discussions.
With respect to the conversation between the President and Dean on
April 15, Buzhardt stated that the President, when he had offered that
tape to Petersen, had been referring only to the President's dictation
of his own recollections of the conversation. Buzhardt's response
concluded that “it would, of course, not be appropriate to produce that
tape.”

In responding to Buzhardt on June 20, Cox objected on two
grounds to the President's denial of the tape recording of his recol-
lections: first, since the President had offered to allow Petersen to
listen to the tape, there could be no proper reason for withholding
it from the Special Prosecutor who had assumed control of the Water-
gate investigation; second, the conversation was “critically important”
to the task of untangling the complicated allegations about an at-
tempt to cover up responsibility for the Watergate break-in. As Cox
put it:

In this case the witness is the President. Whatever may be the
power of the Judicial Branch to subpoena him, it is certainly
appropriate to obtain information from the President in ways less
likely to interfere with the performance of his high responsibilities;
and it is for this reason that I have thus far confined myself to a
request for his recorded recollection [and not made a request for
his personal testimony]. If the President wants the full facts
developed without fear or favor — as 1 assume must be the case —
then surely he must be willing for us to have such potentially

88

important information without argument about any privilege he
might theoretically assert.

During the next two weeks Cox also requested access to the “ITT"
file maintained by Fred Fielding, one of Mr. Dean's assistants.

By this time the White House had produced some documents in
response to earlier requests. On June 22, WSPF received a list of
Petersen's and Attorney General John Mitchell's meetings and
telephone calls with the President. A week later, another letter ex-
plained the White House staff organization and enclosed a list of
the staff members of various key personnel. In addition, WSPF
received a copy of the list kept by Hose Mary Woods, the President's
secretary, of pre-April 7, 1972, cash contributors to the Nixon cam-
paign. There was no response, however, to Cox's request for inventories
of White House files related to Watergate, the Fielding ITT file, or
the President's taped recollections of his April 15 meeting with Dean.
Nor was there any response to Cox's request of June 27 that the
President provide a detailed written narrative responding to Dean's
Senate Select Committee testimony.

Early in July, the office, in suggesting the need for delay in the
Watergate civil suits, represented in court its intention to bring an
indictment in the Watergate case no later than September. Never-
theless, a thorough investigation required access to additional White
House files. On July 10, Cox wrote Buzhardt that “the delay [in
responding to our requests] is now hampering our investigation of
possible criminal offenses by high Government officials." Reminding
Buzhardt that he had been “very patient — perhaps too patient — in
seeking voluntary cooperation," Cox stated that he knew of no priv-
ilege that “would entitle the President to withhold documentary
evidence of criminal misconduct on the part of Government employees
or the White House staff." He warned that assertion of a privilege
is “bound to be damaging to the President personally and to the
office of the Presidency." Cox told the White House in unequivocal
terms :

I have repeatedly given public assurance that I would report upon
any difficulty encountered in obtaining from the White House all
information material to our investigation. I am reluctant either to
take that course or to seek legal process before the opportunities
for cooperation have been exhausted. Further delay would be so
prejudicial to our work, however, that I must insist upon a prompt,
categorical response to each of my prior requests and to the other
requests for specific papers that I shall undoubtedly have occasion
to make (including my letter of today's date).

As the letter indicated, Cox also made a request on the same date
for additional information from the White House :

(1) logs showing telephone conversations and meetings on
July 5 and 6, 1972, between the President and Clark MacGregor;

89

(2) copies of "political matters memoranda” from Gordon
Strachan to H. R. Haldeman, two former White House aides;

(3) a copy of Dean's "miscellaneous intelligence” file;

(4) a copy of the logs showing the specific items from the files
that had been copied by former White House staff members after
April 30, 1973; and

(5) copies of any records of items inserted into the White
House files by former White House aides John Ehrlichman or
David Young after April 30, 1973.

The White House responded on July 21. Expressing "great regret”
for the delays, the President's attorney claimed that his office had been
extremely busy with the Senate Select Committee hearings and sub-
poenas in civil actions and that the requests of the Special Prosecutor
raised questions that had to be resolved by the President. Citing the
President's international obligations and recent poor health, Buzhardt
promised an early response to Cox's letter, but cautioned that "obtain-
ing a decision from the President on sensitive questions that only he
can decide is often not a speedy process.”

Buzhardt's letter must be read in the context of the events that
preceded it, beginning with testimony of Alexander Butterfield.

Grand Jury Subpoena Duces Tecum

On July 16, Alexander Butterfield, previously the President's
staff secret ary, told the Senate Select Committee that an automatic
tape recording system had been installed in the President's White
House and Executive Office Building offices in early 1971. According to
Butterfield, this system was capable of recording automatically all
telephone conversations and meetings in either office.

The significance of the President's recording system was immedi-
ately apparent. John Dean had testified that a number of his meetings
with the President had implicated the President and his high aides
in the Watergate cover-up. The recordings could provide invaluable
corroboration for Dean's description of the meetings, as well as sup-
port his credibility on other aspects of his testimon}^ or they could
show that his statements had been untrue.

The Special Prosecutor was faced with two concerns in determining
how to proceed. First, although Cox was generally optimistic that
President Nixon, like all his predecessors in office, would abide by
any final court determination, he was anxious to avoid a possible
constitutional confrontation between the judicial and executive
branches if the President were to disobey a court order to produce
the recordings. Second, Cox was concerned that enforcement proceed-
ings necessarily would involve substantial delays in the investigation.

Despite these concerns, Cox concluded that WSPF could not
proceed with the Watergate investigation without taking all possible

90

steps to secure evidence that could be so important in determining
responsibility for the Watergate cover-up.

Once he had decided to make a request for the recordings, Cox had
to choose the conversations most essential to the investigation. A
judicial decision would depend heavily on a balance between the need
for confidentiality in deliberations of the Executive Branch and the
need of the judicial process for evidence material to a criminal in-
vestigation and prosecution. Cox therefore chose the conversations
that appeared essential to determining the truth or falsity of Dean’s
allegations before the Senate Select Committee. The tapes of the
actual conversations woidd be crucial to the resolution of the grand
jury’s investigation. In addition, Cox picked those meetings which,
from the available circumstantial evidence, would reveal the forma-
tion of any conspiracy — these included meetings of the President
with Ehrlichman and Haldeman shortly after the break-in, one of the
first conversations between the President and Mitchell after the
break-in, and the meeting between the President and Mitchell on the
day preceding Mitchell’s resignation as director of CRP.

On July 18, Cox wrote to Buzhardt requesting access to the tape
recordings of nine specified conversations. He emphasized “ three
essential aspects” of the request: first, the materiality of the record-
ings to the investigation of serious criminal misconduct; second, the
lack of any separation of powers issue because the request was being
made by a prosecutor within the executive branch, and not, for
example, by the Senate Select Committee; and third, the confidenti-
ality that attached to grand jury proceedings. On July 23, Charles
Alan Wright responded with the President’s instructions that it would
not be possible to make available the requested recordings, for reasons
similar to those stated to Senator Ervin in denying a Senate Select
Committee request. In addition, Wright argued that as part of the
executive branch, the Special Prosecutor was subject to the direction
of the President or the Attorney General and could not have access
to Presidential papers unless the President saw fit to grant access.
He argued:

It is for the President, and only for the President to weigh
whether the incremental advantage that these tapes would give
you in criminal proceedings justifies the serious and lasting hurt
that disclosure of them would do to the confidentiality that is
imperative to the effective functioning of the Presidency. In this
instance the President has concluded that it would not serve the
public interest to make the tapes available.

In a letter to Senator Ervin written the same day, the President
indicated that “[i]f release of the tapes would settle the central
questions at issue in the Watergate inquiries, then their disclosure
might serve a substantial public interest that would have to be weighed
very heavily against the negatives of disclosure.” He claimed that

91

the tapes “would not finally settle the central issues,” but that he
had personally listened to a number of the tapes and they were
“entirely consistent with what I know to be the truth and what I
have stated to be the truth.”

Upon receiving Wright’s response, Cox announced at a press
conference that he immediately would seek subpoenas to obtain the
recordings. A subpoena returnable on July 26 was served immediately
on the President’s counsel. 1

On July 25, the President wrote to Chief Judge Sirica and refused
to comply with Cox’s subpoena. He said he was following the example
of predecessors who had “consistently adhered to the position that the
President is not subject to compulsory process from the courts,” and
stated that it would be “inconsistent with the public interest and with
the constitutional position of the Presidency to make available re-
cordings of meetings and telephone conversations in which I was a
participant.” 2

The next morning, Cox explained to the grand jurors the Presi-
dent’s refusal to comply with the subpoena and sought the grand
jury’s authorization to request an order from Chief Judge Sirica
compelling the production of the tapes. Upon the unanimous vote of
the grand jurors, the Special Prosecutor filed a petition for an order
directing the President to show cause why the subpoenaed materials
should not be produced. In the petition, the Special Prosecutor
claimed that the grand jury had an enforceable right to access to the
recordings, which were relevant and important to its investigations,
and that the President, in a public statement on May 22, 1973, had
waived any claim of executive privilege. (This statement authorized
his aides to testify about Watergate before the Senate Select Commit-
tee.) Finally, the petition argued that it was the responsibility of the
courts, and not the exclusive prerogative of the President, to de-
termine whether a claim of privilege to withhold evidence from the
courts was valid. After polling the grand jurors in open court and
determining that it was their wish that the subpoena be enforced,
Chief Judge Sirica signed the order to show cause, returnable on
August 7.

1 In addition to the tapes and related notes and memoranda, the subpoena
called for the original of a memorandum on the termination of E. Howard Hunt
as a White House consultant (a copy previously had been given to the FBI) and
the “ Political Matters Memoranda” prepared for Haldeman by Strachan. Cox
believed that neither item was subject even to an arguable claim of privilege.

2 Nevertheless, he stated that, like his predecessors, he would voluntarily
make available relevant material where that would not be “inconsistent with the
public interest.” He wrote that he was “voluntarily transmitting for the use of
the grand jury” the memorandum on Hunt’s termination and Strachan’s Political
Matters Memoranda. (The Hunt termination memorandum was enclosed with
the letter, but the Political Matters Memoranda were not. They were not made
available to the Special Prosecutor until September.)

92

On the return date, President Nixon filed a special appearance
in which he contended that the order should be vacated because the
court lacked jurisdiction to compel the President to comply with a
subpoena. 3 The accompanying brief argued that compelled disclosure
of the recordings not only would result in “severe and irreparable”
damage “to the institution of the Presidency,” but also would violate
the constitutional doctrine of the separation of pjowers.

The Special Prosecutor replied to this brief on August 13, arguing
that the courts, as the historic arbiters of the Constitution, have the
final authority to determine whether the executive can be required to
produce evidence for use in a judicial proceeding and that the Presi-
dent is not absolutely immune from orders requiring him to comply
with constitutional duties, including the production of unprivileged
evidence. Acknowledging that the courts had recognized a qualified
privilege in the interest of promoting candid policy discussions among
executive officials, the Special Prosecutor contended that the privilege
did not apply where there was reason to believe that the discussions
may have involved criminal wrongdoing, and that, under the circum-
stances, the need of the grand jury for the subpoenaed recordings
outweighed the public interest served by the confidentiality of execu-
tive deliberations. Finally, the Special Prosecutor argued that any
privilege attaching to the particular recordings had been waived
by the President’s consent to other disclosures of their content.

In his reply brief, the President claimed for the first time in court
that he had ultimate responsibility for the prosecution of criminal
cases and thus had ultimate control of what evidence would be pro-
duced for a criminal proceeding by the United States. The Special
Prosecutor responded that the evidence was being sought by the
grand jury, that the grand jury had independent authority to seek
evidence wherever it might be, that the grand jury was not subject
to the unfettered control of the executive branch, and that, in seeking
enforcement of the subpoena, the Special Prosecutor was acting as
the attorney for the grand jury and not merely as a subordinate mem-
ber of the executive branch.

The issues were argued on August 22, 1973, before Chief Judge
Sirica. The arguments were essentially those set forth in the briefs,
with one notable exception. In his rebuttal argument, Wright stated
that the President had told him that one of the subpoenaed tapes
contained “national security material so highly sensitive” that the
President could not even “hint” to Wright, who had a top secret
clearance, the nature of the information. 4

3 A special appearance permits a party to argue that the court lacks jurisdic-
tion without submitting to the court’s jurisdiction by the very fact of appearing.

4 When the recordings eventually were produced, no claim relating to national
security was made, and it soon became apparent that the tapes did not include
any classified information.

93

591-439 0 - 75-7

On August 29, 1973, Chief Judge Sirica ruled that the courts, and
not the President, must make the ultimate determination of the
validity and scope of any privilege asserted to bar them from obtain-
ing evidence relevant to their proceedings and that they have the
power to order a President to comply with a grand jury subpoena
calling for unprivileged evidence in his possession. Although the
judge emphasized the need of the grand jury, he seemed to suggest
that the privilege would yield only with respect to those conversations
that did not occur pursuant to the President's exercise of his duty
“to take care that the laws be faithfully executed," that is, those
conversations that on their face revealed a criminal conspiracy.
Clearly, mere relevance to Watergate was not the test. The judge
ordered the President to produce the subpoenaed materials for court
inspection, but stayed his order for five days to permit the President
to seek appellate review.

Without awaiting the formal filing of papers, the Court of Appeals
informally indicated to the parties that if review were sought the
Court would hear oral arguments on September 11, using the briefs
in the district court and any supplemental briefs the parties wished
to file on September 10. Although objecting to the expeditious sched-
ule, the President, after both noting an appeal and filing a petition
for a writ of mandamus, filed a new brief in the Court of Appeals
developing at greater length the issues that he had raised in the district
court. The Special Prosecutor also petitioned the Court of Appeals
for review, arguing that inspection by Chief Judge Sirica was un-
necessary because no valid claim of executive privilege could exist
for any conversations actually relevant to the grand jury's proceedings.
Alternatively, the Special Prosecutor asked the Court of Appeals
to specify the particular standards that should govern the judge's
inspection and argued that informed determinations of relevance
could be made only with the Special Prosecutor's participation in
the review.

On September 13, two days after oral argument, the Court of
Appeals directed the parties to explore the possibility of reaching an
agreement on voluntary submission of certain portions of the sub-
poenaed recordings to the grand jury. As the Court of Appeals stated:

[I]f the President and the Special Prosecutor agree as to the
material needed for the grand jury's functioning, the national
interest will be served. At the same time, neither the President
nor the Special Prosecutor would in any way have surrendered
or subverted the principles for which they have contended.

After initial discussions, the Special Prosecutor submitted to the
President's counsel a proposal that called for preparation of copies
of the tapes with omissions of any portions not related to matters

94

within the Special Prosecutor’s jurisdiction; verification by a mutually
acceptable person of the fact that the guidelines for omission had
been accurately applied; and finality of the reviewer’s determination.
Before submission to the grand jury, the Special Prosecutor and
counsel for the President would review the copies in an endeavor
to agree upon the excision of any portion that was not material to the
grand jury’s investigation. Most important from the Special Prose-
cutor’s viewpoint, the proposal included procedures for reviewing
tapes that the Special Prosecutor might request in the future, either
for the Watergate cover-up investigation or other grand jury investiga-
tions. A favorable court ruling at that time would have governed future
requests, and if the Special Prosecutor were to forego final court
resolution — after nearly two months of litigation — it was essential
not to have to start from the beginning again if there should be another
impasse over access. The proposal was unacceptable to the White
House, however, and on September 20 both parties advised the
Court that their discussions had been unsuccessful.

On October 12, the Court of Appeals, en banc, issued its decision
rejecting the President’s claims. The Court first decided that a Presi-
dent is not immune from judicial orders requiring the production of
evidence for judicial proceedings. According to the Court, “sovereignty
remains at all times with the people, and they do not forfeit
through elections the right to have the law construed against and
applied to every citizen.” Citing the long-standing principle that the
grand jury has a right to every person’s evidence, the Court then
held that executive privilege is not absolute, but must be balanced
against other values. In this case, the Court ruled, the compelling
need demonstrated by the grand jury outweighed the need of the
executive branch to maintain the confidentiality of the particular
conversations. In this regard the Court considered it important that
public testimony concerning the conversations had substantially
diminished any interest in maintaining further confidentiality. Finally,
the Court emphasized that the standard for court screening of the
tapes was only to be one of relevance to the grand jury’s proceedings,
and not whether the President, in participating in the conversation,
was engaging in his constitutional duties. The Court stayed its order
for five days to permit the President to seek review in the Supreme
Court.

The Stennis Compromise and the Dismissal of Cox

On the Friday afternoon of the Court of Appeals decision, but
before it had been announced, Cox met with Attorney General
Richardson about an unrelated matter. During the meeting, Richard-
son philosophized about the need for a public official to know when to
take a stand on a matter of principle. The following Monday, during

another meeting hastily called by the Attorney General, Richardson
stated that “serious consequences” might ensue if Cox were not to
agree to a compromise on the tapes by the close of business Friday,
October 19, the date on which the President was due to file his petition
for review by the Supreme Court. Although Cox expressed great
reservations about negotiating under a deadline, and argued that
there was no need to complete the negotiations so rapidly, he agreed
to explore the possibility of a compromise.

After another meeting with Richardson on Tuesday the 16 th>
when Cox suggested that it would be best if Richardson were to put
his proposal in writing, Richardson the next day delivered to Cox a
document entitled “A Proposal.” The stated objective was to provide
“a means of furnishing to the court and the grand jury a complete
and accurate record of the content of the tapes subpoenaed by the
Special Prosecutor insofar as the conversations recorded in those tapes
in any way relate to the Watergate break-in and the cover-up of the
break in.” The proposal provided that the President would select an
individual to verify transcripts previously prepared by the White
House — transcripts that would be verbatim, but would omit continu-
ous portions unrelated to Watergate and would be in the “third
person.” The verifier would be permitted to paraphrase language
“whose use in its original form would in his judgment be embarrass-
ing to the President” and, in the interests of national security, to
omit sections related to the national defense or foreign relations.
Finally, the proposal would require the Special Prosecutor to join
with counsel for the President in urging the Court to accept the
verified transcripts as full and accurate records of all pertinent por-
tions of the tapes “for all purposes for which access to those tapes
might thereafter be sought by or on behalf of any person having
standing to obtain such access.”

Cox responded to Richardson on Thursday the 18th in a document
entitled “Comments on ‘A Proposal/ ” He stated his willingness to
accept the “essential idea of establishing impartial, but non-judicial
means for providing the Special Prosecutor and grand jury with an
accurate record of the contents of the tapes without [the Special
Prosecutor’s] participation,” but listing eleven specific comments
that struck him as “highly important,” including the following:

(1) The public cannot be fairly asked to confide so difficult
and responsible a task to any one man operating in secrecy,
consulting only with the White House. Nor should we be put in
the position of accepting any choice made unilaterally.

(2) The stated objective of the proposal is too narrow. It
should include providing evidence that in any way relates to other
possible criminal activity under the jurisdiction of this office.

(3) I do not understand the implications of saying that the
“verbatim transcript . . . would be in the third person.” I do

96

assume that the names of all speakers, of all persons addressed by
name or tone, and of all persons mentioned would be included.

(4) A “transcript” prepared in the manner projected might be
enough for investigation by the Special Prosecutor and the grand
jury. If we accept such a “transcript” we would try to get it
accepted by the courts (as you suggest). There must also be
assurance, however, that if the indictments are returned, if evidence
concerning any of the nine conversations would, in our judgement,
be important at the trial, and if the court will not accept our
“transcript” then the evidence will be furnished to the prosecution
in whatever form the trial court rules is necessary for admissibility
(including as much of the original tape as the court requires).
Similarly, if the court rules that a tape or any portion must be
furnished to a defendant or the case will be dismissed, then the
tape must be supplied.

(5) The narrow scope of the proposal is a grave defect, because
it would not serve the function of court decision in establishing
the Special Prosecutor’s entitlement to other evidence. We have
long pending requests for many specific documents. The proposal
also leaves half a lawsuit hanging (i.e., the subpoenaed papers).
Some method of resolving these problems is required.

(6) The Watergate Special Prosecution Force was established
because of a widely felt need to create an independent office that
would objectively and forthrightly pursue the prima facie showing
of criminality by high Government officials. You appointed me,
and I have pledged that I would not be turned aside. Any solution
I can accept must be such as to command conviction that I am
adhering to that pledge.

Later that night, Wright telephoned Cox to inform him that cer-
tain of his comments were unacceptable. Cox realized that a confronta-
tion was inevitable and believed that all communications should be
in writing so that there would be a record of each side’s position. He
, asked Wright to address a letter stating the President’s response to
the comments that Cox had delivered to Richardson. Cox promised a
prompt reply.

Early on Friday morning, October 19, Wright’s letter was de-
livered. Briefly, it stated that the “very reasonable proposal that the
Attorney General put to you, at the instance of the President,” was
intended to provide information necessary to the grand jury and to
“put to rest any possible thought that the President might himself
have been involved in the Watergate break-in or cover-up.” Wright
stated the President’s belief that the proposal would serve the national
interest, but that four of Mr. Cox’s comments “depart so far from that
proposal and the purpose for which it was made that we could not
accede to them in any form.” The four unacceptable comments
included the objection to one person reviewing the tapes and to that
person being selected solely by the White House; the suggestion
that the reviewers be appointed “special masters” and thus account-
able to the court rather than the parties; the demand that the tapes

97

be made available if a court required; and the demand that the
proposal also be applied to pending and future requests. Finally,
Wright said :

If you think that there is any purpose in our talking further,
my associates and I stand ready to do so. If not, we will have to
follow the course of action that we think in the best interest of
the country.

Cox replied as requested by 10:00 that morning, setting forth his
understanding of the conversation the preceding evening — that is,
that Wright had stated that there was no point in continuing conversa-
tions in an effort to reach a “reasonable out of court accommodation”
unless Cox accepted categorically the President's position with respect
to certain key provisions. In addition to stating that the President
already had selected the only person he would consider acceptable to
review the tapes, that there could not be a special master under a
court order, and that no portion of the tapes themselves would be
provided under any circumstances, Wright had indicated that Cox
would have to agree not to subpoena any other White House tapes,
papers, or documents, no matter how relevant to criminal wrongdoing
by White House officials. In conclusion, Cox wrote:

I have a strong desire to avoid any form of confrontation, but
I could not conscientiously agree to your stipulations without
unfaithfulness to the pledges which I gave the Senate prior to my
appointment. It is enough to point out that the fourth stipulation
would require me to forego further legal challenge to claims of
executive privilege. I categorically assured the Senate Judiciary
Committee that I would challenge such claims so far as the law
permitted. The Attorney General was confirmed on the strength
of that assurance. I cannot break my promise now.

Wright responded that “further discussions between us seeking to
resolve this matter by compromise would be futile, ... we will be
forced to take the actions that the President deems appropriate in the
circumstances.” He added that he wished to clear up two points “in
the interest of historical accuracy, in the unhappy event that our
correspondence should see the light of day.” First, he said that the
issue of eventual availability of the tapes was a matter open to negotia-
tion, but that the President would not give any advance commitment;
second, the Special Prosecutor would be barred only from subpoenaing
“private Presidential papers and meetings,” not the great mass of
White House documents with which the President was not personally
involved.

That night, October 19, President Nixon issued a statement setting
forth the so-called “Stennis compromise” and announcing his decision
not to seek Supreme Court review of the Court of Appeals decision.

The “Stennis compromise,” which accorded with the basic outlines of
the Richardson proposal of Wednesday morning, provided that Sena-
tor John Stennis would review the tapes to verify the White House
transcripts and that the President would make available to Judge
Sirica, as well as to the Senate Select Committee, the Watergate-
related portions of the authenticated transcripts.

At the same time, the President delivered a letter to Attorney
General Richardson directing him to instruct Cox “to make no further
attempts by judicial process to obtain tapes, notes, or memoranda
of Presidential conversations.” He added that he regretted “the
necessity of intruding, to this very limited extent, on the independence
that I promised you with regard to Watergate when I announced
your appointment. This would not have been necessary if the Special
Prosecutor had agreed to the very reasonable proposal you made to
him this week.” Richardson told Cox about the letter, but emphasized
that he was not delivering the instructions that the President had
directed him to give.

Cox hurriedly prepared a brief statement which he read to the
press that evening. Accusing the President of “refusing to comply
with the court decrees,” Cox stated that he would challenge the
Stennis compromise in court. He added that he could not “violate”
his promise to the Senate and the country to invoke judicial process
“to challenge exaggerated claims of executive privilege.” In an hour-
long press conference held at noon the following day, October 20,
Cox elaborated on his belief that acceptance of the President’s direc-
tions would defeat the fair administration of criminal justice by
compromising the Special Prosecutor’s independence and insulating
the President from the courts.

The dismissal of Cox and related events are described in Chapter
1 and Appendix B of this report. Public reaction played a substantial
part in the President’s later decision to comply in full with the court
order and to abandon the Stennis plan. When Wright appeared before
Judge Sirica on Tuesday, October 23, he announced that because of
“the events of the weekend,” the President had decided to abide
by the Court of Appeals ruling.

Production of the Subpoenaed Materials and the Tapes Hearings

In the week that followed the President’s reversal, the parties
agreed on procedures and a timetable for production of the subpoenaed
tapes and related materials. Chief Judge Sirica announced on October
30 that White House counsel would submit the tapes with an accom-
panying analysis indicating the portions of the recordings that did not
relate to Watergate and thus were still privileged. Judge Sirica then

99

would review each recording, and give the grand jury all portions
relevant to its investigation. 5

On October 31, however, Buzhardt reported to the Court that
recordings of the telephone call from Mitchell to President Nixon on
June 20, 1972, and the meeting between President Nixon and Dean
on April 15, 1973, did not exist. As Buzhardt later explained, the June
20 telephone call, received by the President in the residence area of the
White House, had not been recorded, and the Dean meeting was not
recorded because the tape had run out earlier on the busy Sunday of
April 15.

After conferring with the parties, Chief Judge Sirica decided to
hold hearings to explore how the taping system had been installed
and maintained, how the tapes were stored, who had access to them,
and why the June 20 call and April 15 meeting had not been recorded.
These hearings, primarily with the testimony of Secret Service agents
and White House aides who had been responsible for the system, lasted
approximately two weeks and then were recessed.

On November 21, Buzhardt disclosed that 18^ minutes of the
recording of the June 20, 1972, meeting between President Nixon and
Haldeman had been obliterated, 6 Only a buzzing sound could be heard.
Haldeman’s notes of the meeting confirmed that the erased portion
concerned Watergate. Chief Judge Sirica reconvened the tapes hear-
ings, with testimony from Woods (who admitted accidentally erasing
a short segment of the 183^ minutes), White House chief of staff Gen.
Alexander Haig, Buzhardt, and White House aide Stephen Bull.
The Court, with the* consent of the parties, also appointed a six-mem-
ber panel of experts to test and analyze the tapes. Upon conclusion of
hearings and receipt of the expend report, Chief Judge Sirica referred
the record of the proceedings to the grand jury for its consideration.
(This investigation is described in Chapter 3 of this report.)

Renewed Requests for Tapes and Documents

One of the principal issues during the period between Cox's
dismissal and the appointment of Special Prosecutor Jaworski was

5 The only recording that White House counsel asserted was totally unrelated
to Watergate was the recording of the June 30, 1972, meeting between President
Nixon and Mitchell. After reviewing the recording and consulting with the
Special Prosecutor, the judge determined that two brief passages should be
submitted to the grand jury.

White House counsel also asserted privilege with respect to the final portion
of the September 15, 1972, meeting among President Nixon, Dean and Haldeman.
The judge upheld the claim, but upon motion of the Special Prosecutor later
released the portion to a different grand jury in connection with the investigation
into alleged White House misuse of the Internal Revenue Service.

6 Subsequently, White House counsel revealed the existence of much shorter
gaps in the President’s taped recollections of his June 20 telephone call with
Mitchell and his March 21, 1973 meeting with Haldeman and Dean.

100

whether the officials of the Department, including Acting Attorney
General Bork and Assistant Attorney General Petersen, who had
taken charge of the Special Prosecutor's investigations, would stand
behind the staff in seeking evidentiary material in the control of
the President. Although Cox had refrained from making many re-
quests pending the outcome of the tapes litigation, three of WSPF's
recent letters requesting documents had not been answered. On
August 23, Cox had written to Buzhardt requesting a series of records
relating to the office's investigation of the “Plumbers” break-in at
the office of Dr. Lewis Fielding, Daniel Ellsberg's former psychiatrist.
Four days later he had requested records relating to the investigation
of the wiretap of journalist Joseph Kraft, and on October 10 he had
requested documents relating to the May 3, 1972, assault on anti-war
demonstrators on the Capitol steps. The office had not received a
definitive response to any of these requests, nor to other requests
that had been made long before the subpoena for the Presidential
tapes had been served.

Petersen agreed to renew each of the requests after reviewing
WSPF's ongoing investigations with individual task force leaders
and determining that there was “a clear and immediate need for the
production of the documents and other records.” On November 1,
he addressed a letter to Buzhardt asking for quick production of the
logs of meetings between ten individuals and the President, a request
that had been outstanding since June, and reiterating the requests
of August and October relating to the Fielding break-in, the Kraft
wiretap, and the May 3 assault. The next day he requested all records
relating to the 1970 “Townhouse” operation—a funding operation
for congressional candidates — in connection with an investigation
into possible violations of the Federal Corrupt Practices Act.

On November 5, Leon Jaworski was sworn in as the second Special
Prosecutor with assurances of full cooperation from the White House.
On November 7, after an initial round of briefings on the status of
all investigations, Jaworski made his first request for materials:
copies of recordings of conversations between the President and
Ehrlichman, Mitchell and Kleindienst on April 19 and 20, 1971,
relating to the International Telephone and Telegraph Corporation
(“ITT”). On the following day, he renewed the earlier requests for
materials in the “Plumbers” files, and on November 15, he requested
copies of recordings of conversations between the President and his
former assistant Charles Colson in early January 1973 for use in
the Watergate investigation. In each of his letters, Jaworski asked for
an early response.

Jaworski had met with Buzhardt and General Alexander Haig,
the President's Chief of Staff, on November 13 in part to discuss his
recent requests for tape recordings and to stress the grand juries' need
for prompt responses. They assured Jaworski that cooperation would

101

be forthcoming. Then, on November 19, Jaworski wrote to Buzhardt
asking him to respond to the outstanding requests made before the
dismissal of Cox and the more recent requests made by Petersen.
He stated that failure to respond was “delaying and in some instances
impeding our investigations.” Jaworski made it clear that he would
not tolerate any delays like those experienced by Cox:

In light of past experience, I believe it entirely appropriate to
ask you to acknowledge each of these requests and explain your
current position. As to those materials you intend to produce,
please let us know when you expect to produce them. If you must
review certain materials, please let us know when you will review
them and when we. can expect a definitive response. Finally, if
there are any materials you do not plan to produce in response to
our requests, please identify them and inform us why you are not
producing them.

On November 24, Jaworski received an omnibus response from
Buzhardt on outstanding requests. He stated that although searches
for requested recordings require “enormous expenditures of time,”
the recordings that could be located would be provided. He then
responded specifically to each request for documents, enclosing the
documents that could be found and stating which could not. In short,
Buzhardt's letter constituted a seemingly favorable response to many
WSPF requests, but as Jaworski indicated in his reply of November
30, it merely acknowledged the existence of other requests, particu-
larly in the Watergate and “Plumbers” areas, without indicating
whether they would be met. Jaworski also protested the intimation in
Buzhardt's letter that the Special Prosecutor's office had been less
than cooperative in understanding the attendant delays, and con-
cluded “that if our several requests are treated in the light of the
White House's announced readiness to extend full cooperation — and
we have no reason to believe otherwise — unequivocal response to our
remaining requests should be forthcoming in another week or ten
days.”

In the following week the office renewed the request for Townhouse
documents, only a few of which had been provided ; made an extensive
request for records relating to the investigation of dairy industry
contributions; and renewed the request in more detailed form, for
materials in the “Plumbers” files. On December 6, Jaworski also
wrote to Haig, complaining that over three weeks had elapsed since
their meeting on November 13 when Haig and Buzhardt had promised
cooperation. Although certain documents had been provided on Nov-
ember 24, no tapes had been produced. Stressing the immediate
need for delivery of the requested tapes and other materials, including
the “Plumbers” files and files relating to contributions by the dairy
industry, Jaworski warned that a subpoena would be issued early
the next week if necessary.

102

The next day, Jaworski met with Haig and Buzhardt, and on
December 8, the White House produced eight of the requested
recordings. These related to the ITT investigation, the dairy industry
investigation, the “Plumbers,” and the Watergate investigation.
The White House claimed that other requested conversations had not
been recorded, either because they had taken place outside of the
White House or because the telephone conversations were on lines
that were not subject to the recording system. Finally, Haig and Buz-
hardt maintained that still other conversations were irrelevant to the
investigations; it was agreed, however, that Jaworski would be
allowed to review them, and one which Jaworski determined to be
relevant was later produced. The White House also agreed to allow
a member of the staff to review the files of the “Plumbers” unit.

During his appearance at the Senate Judiciary Committee’s
confirmation hearings on the nomination of William Saxbe to be
Attorney General, Jaworski had assured the Committee that he would
report at an appropriate time on the status of the office’s efforts to
obtain evidence from the White House. On December 13, in a letter
to Committee Chairman James Eastland, Jaworski reported “sig-
nificant cooperation from the White House” and stated that he hoped
for a “mutually satisfactory resolution” of pending requests.

Access After the Commencement of the Impeachment Inquiry

In January of 1974, James D. St. Clair was appointed as the
President’s chief counsel for “Watergate”-related matters. By that
time, the impeachment inquiry by the House Judiciary Committee
had begun in earnest. It was clear from the outset that the arrival of
St. Clair would occasion further delays in obtaining information from
the White House. St. Clair needed time to acquaint himself not only
with “Watergate” in general and the President’s potential liability in
any area of the Special Prosecutor’s requests, but also with prior
relationships and understandings between WSPF and the White
House. The Special Prosecutor believed it essential to renew the re-
quests that were outstanding and to emphasize to St. Clair that
inordinate delays would be intolerable. Accordingly, on January 8,
Deputy Special Prosecutor Henry Ruth addressed a letter to St. Clair
asking for specified items relating to the office’s investigation of the
dairy industry. 7 The next day, Jaworski requested recordings of 25
meetings or telephone conversations relating to the Watergate cover-up
investigation, explaining that these tapes were necessary to permit as
full an investigation as possible before any indictments were returned.

On January 22, Jaworski met with St. Clair, who indicated that
the President would not make a decision with respect to the January 9

7 Jaworski had recused himself from all matters regarding this investigation.

103

requests until the Special Prosecutor provided a justification for each
of the requested recordings. That same day, although stating that he
did not believe that a showing of “particularized need” was required
for each conversation, Jaworski sent St. Clair an explanation of the
importance of each conversation to the Watergate investigation.

At the same meeting, Jaworski and St. Clair also discussed the
possibility of obtaining the President's testimony before the grand
jury. St. Clair suggested that Jaworski consider propounding written
interrogatories to the President, with the possibility of Jaworski
conducting a personal interview after the President answered the
interrogatories. Jaworski countered with the suggestion that the grand
jury come to the White House, an alternative that St. Clair said would
be unacceptable. The following day, Jaworski wrote St. Clair that
written interrogatories generally are not a useful or effective method
for obtaining a person's testimony. But, in order to consider fully the
St. Clair proposal, Jaworski asked that St. Clair determine whether
the President would answer under oath, how long it would take the
President to provide answers, whether tapes and documents relevant
to the answers would be provided, and who, in addition to the Special
Prosecutor, would be permitted to interview the President after the
interrogatories were answered. On January 25, St. Clair responded that
he was prepared to recommend to the President that the answers to
the interrogatories be given under oath, but that in light of the ma-
terials already provided to the Special Prosecutor, it would not be
suitable to provide further tapes and documents. He also indicated
that only Jaworski should conduct the interview.

As to the January 9 request for Watergate-related tapes, St. Clair
claimed that under the Court of Appeals decision of October 12, 1973,
in Nixon v. Sirica , WSPF had to show a “uniquely powerful'' need for
the tapes and that they constituted “evidence for which no effective
substitute is available.” The tapes requested, he contended, were
merely cumulative of the testimony of witnesses before the Senate
Select Committee and thus could serve only as corroboration for the
grand jury. Although he concluded that the January 22 justifications
for Watergate tapes did not meet these requirements, he stated that
no final decision had been made as to whether the material called
for would be produced voluntarily and promised a definitive response
early the next week.

During the first month after St. Clair arrived, the only items pro-
duced were those that had been promised during 1973. Each time
items were delivered to the Special Prosecutor they were accompanied
by a letter stating that the materials were being furnished “solely
for your use in presenting evidence to the grand jury.” It became clear
over the next weeks that St. Clair was primarily concerned that evid-
ence produced for the grand jury not subsequently be provided by
WSPF to the House Judiciary Committee for use in its impeachment

104

inquiry. Believing it necessary to clarify the status of the materials
received, Jaworski wrote to St. Clair on January 25, stating that the
office would lay before the grand jury any relevant evidence bearing
on matters within the Special Prosecutor’s jurisdiction, but that it
was necessarily implicit that, if the grand jury were to return in-
dictments, any evidence provided to the office, whether under subpoena
or voluntarily, could be used at any trials resulting from grand jury
investigations.

On January 30 Jaworski again asked St. Clair by letter for a re-
sponse to WSPF’s numerous outstanding requests. 8 That night, in
his State of the Union Address, the President said that he had turned
over all the evidence that the Special Prosecutor needed to complete
his Watergate investigation. In a similar statement to the press
outside the courthouse the next day, St. Clair hinted that no more
evidence would be forthcoming. Hoping to clarify the situation,
Jaworski wrote to St. Clair on February 1 asking whether it was then
clear that the White House would not voluntarily produce any addi-
tional evidence. Three days later, St. Clair responded: it was the
President’s view that he had furnished sufficient evidence to determine
whether there was probable cause for returning indictments and that
further production would only delay the investigations. He voiced the
hope that some alternative means of furnishing needed information
could be agreed upon to avoid “prolonged litigation.” At the same
time, St. Clair indicated that he would have to review the requests
for documents and that he would respond as soon as possible.

White House attention was then focused solefy on the impeach-
ment inquiry. Perhaps one of the most troubling points for the Special
Prosecutor was the Administration’s concerted attack on John Dean,
an important witness in the Watergate investigation. In response to
this attack, wherein Senate Minority Leader Hugh Scott and others
had issued statements demeaning Dean’s credibility, on February 3
Jaworski publicly stated his belief in Dean’s veracity. Three days
earlier WSPF had found it necessary to vouch for Dean’s credibility
in a court proceeding. On February 4, the day that St. Clair indicated
that no more tapes would be made available to the Special Prosecutor
(tapes obviously critical to determining whether or not John Dean

8 These included: the January 9 request for tapes related to Watergate, the
November 2 and December 3 requests for documents relating to the ** Townhouse ’ f
operation, the December 3 request for records relating to the appointments of
ambassadors, the August 27 request for records relating to the wiretap of Joseph
Kraft, the December 18 request for Fred Fielding’s records relating to IRS, the
December 4 request for documents relating to ITT, the January 8 request for
documents relating to the dairy industry, and the October 10 request for docu-
ments relating to the May 3, 1972 assault on demonstrators.

105

was telling the full truth), the White House press office released the
following statement in St. Clair's name:

I have noted that the Special Prosecutor and members of his
staff have seen fit to discuss in public their views regarding John
Dean's veracity. I can say categorically, however, that the tapes
and other evidence furnished to the Special Prosecutor — at least
as far as the President is concerned— do not support sworn state-
ments before the Senate Select Committee made by Mr. Dean
as to what the President knew about Watergate, and especially
when he knew it. The evidence does support what the President
has said on this matter.

I do not intend, nor would it be appropriate for me, to discuss
the technical, legal issues of perjury. I suggest the time and place
for discussing such matters is in court, or perhaps before the House
Judiciary Committee, not in the public media. For this reason, T
do not believe it would be appropriate to further discuss this
matter at this time.

On February 8, Jaworski met with St. Clair to discuss the Presi-
dent's refusal to provide additional tapes. If the President supplied
the tapes alread}^ requested for the Watergate grand jury investigation,
St. Clair asked, would the Special Prosecutor agree not to request any
further tapes in connection with that investigation? Jaworski
responded in writing that he would be willing to forego future requests
for the grand jury investigation, if it was understood that “this agree-
ment would not foreclose further requests that may be occasioned
by legitimate defense demands or our trial preparation needs after
indictment."

On February 13, St. Clair responded that the President had
refused to reconsider his earlier decision to end his cooperation, at
least with regard to producing any tape recordings of Presidential
conversations. It was clear to Jaworski that any voluntary coopera-
tion was at an end, and, in accordance with his obligation to report
to the Senate Judiciary Committee on the status of requests to the
White House for evidence, he wrote to Senator Eastland to outline
the correspondence of the first week of February and summarize the
materials provided and refused by the White House from the beginning
of the Special Prosecutor's office to date. Jaworski added:

Although it is true that the grand jury will be able to return
indictments without the benefit of this material, the material is
important to a complete and thorough investigation and may
contain evidence necessary for any future trials.

At the same time, the Special Prosecutor decided that prolonged
litigation to obtain more tapes for the grand jury would unduly
delay the Watergate indictment. Accordingly, at his recommendation,

106

the grand jury returned an indictment on March 1 in United States v.
Mitchell , the Watergate cover-up case. 9

Other grand jury investigations were also pending, and President
Nixon also refused to turn over any documents or tapes for them.
On February 27, St. Clair wrote that because the President believed
that the grand juries had sufficient evidence, he would not consent
to provide any materials relating to “Townhouse,” appointment of
ambassadors, White House contacts with IRS, ITT, or the May 3
incident. As to “Townhouse,” St. Clair also challenged the Special
Prosecutor’s jurisdiction because the investigations involved the
1970 congressional elections. Jaworski responded immediately that
he could not “imagine” how the White House knows whether the
grand jury had been “furnished ‘sufficient evidence’ to render fair
and thorough consideration to the question of returning indictments.”
He also challenged the assertion that he had no jurisdiction over the
“Townhouse” matter. On March 2, St. Clair “withdrew” his letter.

Although “Townhouse” documents were produced on March 14,
it appeared that there would not be any significant voluntary co-
operation in other areas. Accordingly, on that day Jaworski issued a
subpoena on behalf of the grand juiy for documents relating to the
appointments and campaign contributions of four ambassadors.
Shortly after the subpoena was served, St. Clair requested an ad-
journment of the return date, and on March 29 the President began
voluntary compliance.

At about the same time, the President produced a short portion
of the recording of a meeting for use in former White House aide
Dwight Chapin’s perjury trial, but significant voluntary cooperation
with WSPF then ceased. The President refused to permit the office
to review the files of his former assistants Ehrlichman and Colson in
connection with the upcoming Fielding break-in trial. 10 Furthermore,
despite an assurance on April 4 that the office would receive a prompt
response to a modified and narrower request for tapes and documents
relating to the dairy industry investigation, no response was forth-
coming. Indeed, it was not until late June that St. Clair informed
WSPF that no tapes would be provided.

9 Prior to ending its investigation, the grand jury invited President Nixon to
testify. The President refused, on the grounds that it would be inappropriate for
a President in light of the constitutional separation of powers to subject himself
to questioning before the grand jury.

10 Later, when the White House refused to permit Ehrlichman access to the
materials and a dismissal of the indictment was threatened, the White House
modified its position to accommodate the minimum requirements set by the
trial judge.

107

The Watergate Trial Subpoena Duces Tecum

On March 12, Jaworski wrote to St. Clair requesting access to
recordings believed important to preparation for the Watergate cover-
up trial. Jaworski requested a response no later than March 19 so that
any litigation necessary could be initiated promptly in order to avoid
any delay in the scheduled trial date of September 9. On March 22,
St. Clair responded that the request was under “active consideration.”
He added that the White House had received a similar request from
the House Committee on the Judicial, “the resolution of which will
obviously bear on your request.” During several meetings and tele-
phone conversations with St. Clair over the following days, it became
clear that WSPF would receive only those materials that were to be
made available to the House Committee. 11 According to St. Clair,
the President would not consider other requests until he had decided
what to provide to the Committee. Moreover, St. Clair would not
specify what criteria would govern the President’s response.

Thereafter, on April 11, Jaworski wrote to St. Clair to inform him
that he would seek a trial subpoena on April 16. In response, St.
Clair withdrew from earlier oral statements to Jaworski and wrote
that the Office’s requests were not tied in the White House’s view to
those of the House Committee “other than in the practical sense that
it is more expeditious to furnish the same material to you and to the
House Committee at the same time.” As to the criteria that would
govern the President’s response, he stated that the response would
depend upon the evidence necessary to a successful prosecution. The
President, he said, would have to balance this need against the public
interest, having in mind the Court of Appeals’ statement in Nixon v.
Sirica that wholesale public access to executive deliberations would
cripple the executive branch. St. Clair also noted that because the
grand jury had returned an indictment, he presumed there already
was sufficient evidence to convict each of the defendants. Finally,
he added that he was “somewhat at a loss to understand how you are
in a position to assert that you need the materials requested since
you do not know what is contained in the recordings in question.”

On April 16, the Special Prosecutor filed a motion before Judge
Sirica requesting that he issue a trial subpoena to the President for
recordings of 64 specified conversations, stating that production was
sought before trial in order to permit review and transcription of the
recordings without necessitating a delay in the trial. The 64 recordings
had been chosen by reviewing all the evidence then available to the
Special Prosecutor including those conversations which could be

11 At the hearing before Judge Sirica on whether the Watergate grand jury-
report on President Nixon would be transmitted to the House Judiciary Com-
mittee, St. Clair had informed the Court that the President would make available
to the House all materials that had been provided to the Special Prosecutor.

108

specifically identified and which, because of either circumstantial
evidence or available testimony, 12 the office had reason to believe
would be relevant to proving the cover-up conspiracy. In addition,
because the prosecutors knew they must counter the argument
that the need for the recordings did not outweigh the interest in
confidentiality of executive deliberations, they chose only those
conversations that were “demonstrably important” to defining the
extent of the conspiracy in terms of time, membership and objectives.

Judge Sirica issued the subpoena on April 18. On May 2, the return
date, the President filed a special appearance and a motion to quash
the subpoena. Although the President claimed no privilege with
respect to the Watergate-related portions of the conversations for
which he had provided transcripts to the House Judiciary Committee
on April 30, he claimed executive privilege with respect to the remain-
ing materials. 13 In his supporting memorandum, the President argued
first that the Special Prosecutor had not made a sufficient showing
that the items were relevant. Indeed, he argued that because the
Special Prosecutor could not show exactly what was in the recordings,
he could not establish their relevance to the trial. Next, the President
contended that the Special Prosecutor's showing of need was insuffi-
cient. The President claimed that the need for evidence by a grand
jury is much greater than that of a prosecutor in a post-indictment
setting. Because the Special Prosecutor had sufficient evidence to
make a prima facie showing of guilt against the persons indicted,
the President argued, the items sought by the subpoena at best could
be classified as “merely cumulative or corroborative — certainly not
vital or particularly necessary.” The President did indicate, however,
that if any defendant could show that particular items were excul-
patory as to him, the President would consider producing them.

WSPF knew that its legal position would be strongest if the Special
Prosecutor disclosed to the Court that the grand jury had voted to
authorize the Special Prosecutor to name President Nixon as an
unindicted co-conspirator in the Watergate trial. The grand jury's
finding was important because it formed a factual predicate for the
legal argument that executive privilege did not apply to any conversa-
tions that occurred in the course of and in furtherance of a criminal
conspiracy. The office believed that the public purpose underlying ex-
ecutive privilege — to promote bona fide governmental deliberations —
could not support the shielding of alleged criminality. Disclosure of

12 In some cases, there was testimony either before the grand jury or in other
forums indicating that the conversation in question related to Watergate. In
other cases, the Special Prosecutor judged from events either before or after the
conversation in question that the conversation probabty concerned Watergate.

13 On April 30, the President submitted to the House Judiciary Committee
transcripts of 43 Watergate-related conversations.

109

591-439 0 - 75 -8

the grand jury’s finding was obviously a sensitive and grave matter,
and Jaworski believed that he should advise St. Clair and Haig that
such a disclosure would be made in the event of further proceedings
to enforce the subpoena. On Sunday, May 5, Jaworski informed
them of the grand jury’s finding and stated that unless there were
voluntary compliance with the subpoena, at least with respect to 16
conversations regarded as essential to the prosecution, he would make
the necessary use of the grand jury’s finding to present the best legal
arguments against the President’s motion to quash. Haig and St.
Clair asked for additional time to consider the matter before the
Special Prosecutor filed his response to the motion.

After listening to the conversations that Jaworski had identified
as crucial, including meetings with Haldeman on June 23, 1972, the
President decided not to comply in any respect with the subpoena.
Accordingly, on May 6, the Special Prosecutor filed his response with
the District Court. At the suggestion of the Special Prosecutor, the
response, which included a statement of the grand jury’s finding,
was filed under seal, since Jaworski believed that in light of the pending
impeachment inquiry, it would be extremely unfair to have the grand
jury’s finding made public at that time, unless that was necessary to
the litigation. In addition to his legal memorandum, the Special
Prosecutor filed a 49-page appendix detailing the relevance of each
subpoenaed conversation. He argued that the available testimony
about the conversations, as well as the circumstances surrounding
each conversation, clearly supported a finding that each would be
relevant to the trial and that the Court should not require a greater
showing of relevance where the prosecutor in fact did not have access
to the actual evidence. He then argued that no executive privilege was
available because each of the participants in the conversation was a
co-conspirator and each conversation occurred in the course of the
conspiracy. Alternatively, he claimed that the need for the evidence,
which related to aspects of the conspiracy for which no other reliable
evidence was available, outweighed any interest in secrecy. The
Special Prosecutor urged that the need for the evidence was even
greater now than in the grand jury because the Government has at
trial the burden of showing guilt beyond a reasonable doubt.

Finally, in addition to arguing that the numerous disclosures by
the President about Watergate, including the transcripts provided
to the House Judiciary Committee on April 30, waived any claim of
executive privilege, the Special Prosecutor argued that it was essential
to obtain the actual tapes of the conversations. Transcripts of the
conversations would not suffice. To support this point he compared
some of the transcripts submitted by the White House with those
prepared by the WSPF for the grand jury. That comparison indicated
material differences between the two sets of transcripts. Important

no

portions had been deleted or marked as unintelligible in the White
House transcripts.

In reply, the President filed a motion to expunge the grand jury’s
finding. He argued that the grand jury had no jurisdiction over the
President — that the President could be subject only to impeachment
for alleged wrongdoing and not to the criminal jurisdiction of the
courts. The President for the first time also raised the argument
that the court did not have jurisdiction over the dispute because it
was “entirely intra-executive in nature.”

The Special Prosecutor in turn filed a memorandum urging that
while it was not necessary for the court to decide the difficult issue
whether the grand jury could have indicted President Nixon, there Avas
no question that the grand jury could find that the President was an
unindicted co-conspirator. Noting that the Constitution did not confer
any immunity on the President, the Special Prosecutor argued that,
because the mere naming of the President as a co-conspirator does not
have any practical consequences on the President’s ability to perform
his constitutional duties, the grand jury’s finding did not violate the
separation of powers doctrine. As to the issue of' jurisdiction, he
argued that there was in fact a case or controversy because, under
the WSPF regulations that were binding upon the Department of
Justice and the President, the Special Prosecutor had exclusive juris-
diction for conducting the prosecution of the Watergate case and
was not subject to the direction of the President or Attorney General.
Thus, the Special Prosecutor was not for these purposes a “subordi-
nate” of the President. Jaworski emphasized that when he had been
selected as Special Prosecutor, he had received repeated assurances
from Bork, Saxbe, and Haig that his independence would not be inter-
fered with. Finally, the Special Prosecutor urged the court to make
all the proceedings public in view~ of the attack on his authority to seek
and enforce the subpoena for Presidential conversations.

Judge Sirica issued his opinion and order enforcing the subpoena
on May 20. At the outset, he held that as long as the regulations
establishing the independence of the Special Prosecutor were in effect,
the President’s “attempt to abridge the Special Prosecutor’s independ-
ence with the argument that he cannot seek evidence from the Presi-
dent by court process is a nullity and does not defeat the court’s
jurisdiction.” Accepting WSPF’s showing of relevance and admissi-
bility, the court held that the demonstration of need was ( Sufficiently
compelling to warrant judicial examination in chambers incident to
weighing claims of privilege where the privilege has not been relin-
quished.” Finally, as to the President’s motion to expunge the grand
jury’s finding, Judge Sirica stated that he saw no need “to grant more
extensive protective orders at this time or to expunge portions of the
record. Matters sought to be expunged are relevant, for example,
to a determination that the presumption of privilege is overcome.”

Ill

Judge Sirica ordered the President to submit the recordings to the
court on or before May 31 but stayed his order until May 24 to permit
the President to seek appellate review.

On May 24, the President sought review in the Court of Appeals.
That same day, however, the Special Prosecutor fTed a petition in
the Supreme Court for direct review of Judge Sirica’s order. Under
Supreme Court rules, this procedure, which allows the Supreme
Court to review a case before it is decided by the Court of Appeals,
is reserved for cases of imperative public importance. As the Special
Prosecutor represented in the petition, expedited consideration by
the Supreme Court was important to permit the Watergate trial to
proceed as quickly as poss ble. He estimated that if the Supreme
Court were to wait until its October 1974 Term, there would be a
delay of at least six months in the start of the trial. Moreover, he
submitted that there was little need for a Court of Appeals decision,
since that Court had considered the same constitutional issues in
deciding the validity of the grand jury subpoena in Nixon v. Sirica
the preceding October. The Special Prosecutor’s petition presented
five issues for review by the Court:

1. Whether the President is subject to a judicial order directing
compliance with the subpoena duces tecum issued on the application
of the Special Prosecutor in the name of the United States.

2. Whether a federal court is bound by the assertion by the
President of an absolute “executive privilege” to withhold demon-
strably material evidence from the trial of charges of obstruction
of justice by his own White House aides and party leaders upon
the grounds that he deems production to be against the public
interest.

3. Whether a claim of executive privilege based on the gen-
eralized interest in the confidentiality of government deliberations
can block the prosecution’s access to evidence material to the trial
of charges of criminal misconduct by high government officials
who participated in those deliberations, particularly where there
is a prima jfacie showing that the deliberations occurred in the
course of the criminal conspiracy charged in the indictment.

4. Whether any executive privilege that otherwise might have
been applicable to discussions in the offices of the President con-
cerning Watergate had been waived.

5. Whether the Special Prosecutor had made an adequate
showing as to the relevance and admissibility of the subpoenaed
items.

The President opposed the petition of the Special Prosecutor solely
on the ground that it was important for the Supreme Court to consider
the case only after careful reflection and deliberation and with the
aid of decisions by the lower courts. The President also stated that
“it is at least questionable whether it is in the best interests of all
parties involved to rush to judgment in this case in the midst of an
impeachment inquiry involving intrinsically related matters.”

112

On May 31 the Supreme Court granted the Special Prosecutor’s
petition and directed the parties to file their briefs simultaneously on
June 21. Reply briefs would be filed on July 1, and oral argument was
set for July 8.

After the Supreme Court granted the Special Prosecutor’s petition,
the President filed a cross-petition raising the sole question whether
the grand jury has the authority to charge an incumbent President
as an unindicted co-conspirator in a criminal proceeding. 14 The
Supreme Court granted the cross-petition on June 15, setting the
same briefing and argument schedule as for the petition of the Special
Prosecutor.

The brief for the Special Prosecutor basically presented the same
arguments previously outlined in the District Court and in the previous
October’s Court of Appeals case. The only new areas involved the
questions whether the Court had jurisdiction over the dispute between
the President and the Special Prosecutor and whether the grand jury
had the power to name the President as an unindicted co-conspirator.
The Special Prosecutor initially was undecided about addressing the
question of jurisdiction in his brief because it had not been presented
by the petition of either party. Since the issue of the Court’s jurisdic-
tion, however, can be raised at any time in any judicial proceeding,
he determined to brief the issue fully at the outset, instead of waiting
to reply to any argument by the President that the Court lacked
jurisdiction. 15 As for the second issue — whether the President was
subject to being named an unindicted co-conspirator — it was decided
as a matter of strategy to treat the question only briefly in a long
footnote to the argument that there can be no privilege when there is
a showing that the subpoenaed conversations occurred in the course
of a criminal conspiracy. The full development of the argument that
the President is subject to being named a co-conspirator was left to
the reply brief.

The President’s brief, in addition to presenting the arguments
made in the District Court, claimed that the President’s absolute
prerogative to withhold the tapes from the courts rested in the con-
stitutional right of privacy and freedom of expression, as well as the
separation of powers. The President also argued that the Court could
not ignore the pending impeachment inquiry and that enforcement of
the subpoena would thrust the courts — unconstitutionally — into that
controversy.

14 On June 15 the Court, on the joint motion of the Special Prosecutor and
counsel for the President, unsealed the grand jurjr’s finding.

15 This decision was influenced by the exchange of correspondence among
Jaworski, St. Clair and Saxbe in which Jaworski charged that the President’s
challenge to Jaworski’s jurisdiction violated the assurances of independence
that he had received when he was appointed.

113

Following oral argument, the Supreme Court on July 24 affirmed
Judge Sirica's order enforcing the trial subpoena. 16 First, the Court
held that it had jurisdiction in the dispute between the President and
the Special Prosecutor because the regulations establishing WSPF
were binding on the executive branch and guaranteed the Special
Prosecutor's independence from control by the Attorney General and
the President. According to the Court, the dispute, stemming from
the claim of privilege in the face of a judicial demand for evidence
relevant and admissible in a criminal case, was the type of dispute
traditionally adjudicated by the courts. The Court then held that
under the Constitution the courts ultimately must determine what the
constitutional powers of each branch are and the courts have the
ultimate power to decide whether a claim of privilege is well taken in
a judicial proceeding. The Court then rejected the claim of an absolute
executive privilege, holding that although the privilege is constitu-
tionally based (the first time this had been decided firmly by the
Supreme Court), it is subject to a balance.

We conclude that when the ground for asserting privilege as
to subpoenaed material sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot pre-
vail over the fundamental demands of due process of law in the
fair administration of criminal justice. The generalized assertion
of privilege must yield to the demonstrated, specific need for
evidence in a pending criminal trial.

Finally, the Court held that Judge Sirica had acted within his dis-
cretion in finding that the Special Prosecutor's showing had satisfied
the burden required for the issuance of a trial subpoena.

The Court did not reach the issue raised by the President in his
cross-petition — whether a President is subject to being named as
an unindicted co-conspirator by the grand jury. Because the Court
found that the interest in confidential^ did not prevail over the
need for evidence in a criminal prosecution, it was unnecessary for
the Court to decide whether the privilege also was vitiated because
the conversations occurred in the course of a criminal conspiracy.
Accordingly, the Court dismissed the cross-petition as “improvidently
granted."

The day the Supreme Court's opinion was filed, the President
announced that he would comply. The next day the Special Prosecutor
filed a motion before Judge Sirica for an order implementing com-
pliance with the judge's earlier order of May 20, enforcing the sub-
poena. Less than a week later, St. Clair produced the first set of

16 The decision was unanimous with one Justice having disqualified himself.

114

subpoenaed recordings for court review. 17 Then, on August 5, before
he was required to produce them in court, the President publicly
disclosed the transcripts of his conversations of June 23, 1972. These
transcripts showed his early involvement in the cover-up, and belied
contrary claims he had repeatedly made to the public and to the
Congress. His remaining support against impeachment in the House
and conviction in the Senate quickly eroded. Four days later he
resigned.

Po st-Resignation Access to the Nixon Administration Materials

A few hours before the President announced his resignation, Haig
conferred briefly with Jaworski to tell him of the imminent announce-
ment and of plans to move the Nixon Administration materials to San
Clemente. He assured Jaworski, however, that the materials would be
kept intact and that there would be a lawyer to respond to any re-
quests that WSPF might have. WSPF had numerous requests out-
standing and there had not been full compliance with the trial
subpoena. 18

On August 13, representatives of the Special Prosecutor met with
Buzhardt and St. Clair about the status of the Nixon materials.
Buzhardt said that the Special Prosecutor would be notified before
any steps were taken to move the materials to San Clemente, but
later that day the office learned through the wire services that there
were immediate plans to move the materials to San Clemente. The
reports indicated that a van was being loaded with the former Presi-
dent’s personal files. White House press statements also claimed that
the Special Prosecutor had approved the transfer. WSPF immediately
telephoned the White House to object to the removal and the state-
ment. The statement was retracted, and Buzhardt gave an assurance
that there would be no transfer without adequate advance notice to
enable the Special Prosecutor to take legal action.

On August 15 four members of the Special Prosecutor’s staff met
with Buzhardt and Philip W. Buchen, who that day had been named
counsel to President Ford. At the outset, the WSPF representatives

17 Under procedures first set forth in Nixon v. Sirica and incorporated in
Judge Sirica’s order of May 20, all subpoenaed recordings (with the exception
of those conversations that had not been recorded) were produced for inspection
by the judge. After reviewing the recordings, all relevant portions were released
to WSPF for use in the cover-up trial. Under the Supreme Court’s decision in
United States v. Nixon } all portions of the subpoenaed recordings not actually
relevant to the trial remained privileged.

18 Although all of the tapes called for by the subpoena had been produced,
very few of the written notes and other materials pertaining to the subpoenaed
conversations (materials that the subpoena required to be produced) were pro-
vided to the court.

115

delivered a schedule summarizing all requests then outstanding, as
well as schedules delineating possible future requests for files that the
Special Prosecutor believed contained evidence relevant to his con-
tinuing investigations. The staff members stated their preference not
to enter into a detailed discussion of ownership of the materials, but
observed that there were strong arguments that the working papers of
one Administration, as long as they are relevant to pending business
of the next Administration, must be made available to the next
Administration. At the same time, they emphasized their interest in
reaching an amicable arrangement with former President Nixon and
the Ford Administration. Buzhardt expressly assured them that
nothing would be moved as long as the Special Prosecutor objected.
Buzhardt further stated that he would visit the former President the
following week to impress upon him the urgency of securing a repre-
sentative to enter into discussions with WSPF to explore possible
means of providing WSPF with access to the materials it needed to
complete its investigations. At the conclusion of the meeting, it was
announced by joint agreement that the status of the materials in
which the Special Prosecutor had a continuing interest would be
maintained pending discussions.

Following the meeting, Buchen requested the Attorney General
to prepare an opinion on the question of ownership of the Nixon
materials. Upon receiving informal advice from the Department of
Justice that the former President owned the materials, Buchen, on
behalf of President Ford, without any notice to WSPF, entered into
discussions with Herbert J. Miller, Jr., counsel to the former President,
concerning a depository agreement regarding future custody of the
Nixon tapes and documents.

On September 8, President Ford announced that he had granted a
full and unconditional pardon to his predecessor for any offenses he
might have committed during his tenure as President. At the same
time, President Ford made public a September 7 agreement between
Arthur F. Sampson, the Administrator of General Services, and former
President Nixon whereby all “historical materials” of the Nixon Ad-
ministration would be deposited in a secure federal facility in Cali-
fornia. Under the terms of the agreement, once the materials were
deposited, all requests or subpoenas for the materials would have to
be directed to the former President who would have sole control over
who could gain access to them. President Ford also announced the
Attorney General’s formal opinion that former President Nixon
owned all the materials in question.

On September 12 members of the Special Prosecutor’s staff met
with Buchen and representatives of the Department of Justice. The
WSPF representatives stated their belief that the Nixon-Sampson
agreement violated the assurances given to the Special Prosecutor on
August 15. The Special Prosecutor was willing, if necessary, to chal-

116

lenge the validity of the agreement. As a result, the Justice Department
undertook discussions with Miller to determine whether a “modifi-
cation” of the agreement could be reached to accommodate the in-
terests of the Special Prosecutor.

Over the following days there were a series of meetings between
Miller and the Department on the one hand and the Department and
WSPF on the other.

The discussions included a proposal that the Special Prosecutor’s
requests for Nixon materials be submitted to an arbitration panel
composed of a designee of the former President, a designee of the
Special Prosecutor, and a third person to be chosen by the other two
members of the panel. In making decisions, the arbitration panel
would apply the same standards and principles that would be appli-
cable in a court of competent jurisdiction. Negotiations over the
details of a possible agreement also were carriedmn directly between
Miller and representatives of the Special Prosecutor. They eventually
broke down, however, over two principal issues — whether there would
be any judicial review of the arbitration panel’s decisions and whether
the arbitration agreement would make any statement regarding the
legislation then pending in the Congress to abrogate the Nixon-Samp-
son agreement. During these negotiations former President Nixon
voluntarily provided materials that WSPF requested for the Watergate
cover-up trial.

On October 17 former President Nixon brought suit in the United
States District Court for the District of Columbia against Sampson,
Buchen and H. Stuart Knight, the Director of the Secret Service
(the custodian of many of the Nixon materials), to compel enforce-
ment of the September 7 agreement or, in the alternative, to require
delivery of all the tapes and documents to him in California. The
Special Prosecutor intervened in this suit to protect and preserve
his interests in the Presidential materials. A temporary restraining
order by the court maintained the status quo and permitted access
to the materials only with the joint consent of the former President
and counsel for President Ford.

Thereafter, the Special Prosecutor issued grand jury subpoenas
to Buchen for Nixon materials which the office believed to be relevant
and important to its pending investigations. On November 9, following
discussions among counsel for President Ford, the Department of
Justice and the Special Prosecutor, the President determined that
“the due administration of justice and the public interest require
that the Special Prosecutor have prompt and effective use of those
Presidential materials of the Nixon Administration now located in
the White House complex that are relevant and important to ongoing
criminal investigations and prosecutions within the Special Prose-
cutor’s jurisdiction.” The Special Prosecutor then entered into an
agreement with Buchen, Sampson and Knight whereby WSPF would

117

gain access to the materials to conduct a limited search for the relevant
documents and tapes. The subpoenas issued to Buchen were then
withdrawn.

Because of the outstanding temporary restraining order, it was
necessary for the Special Prosecutor and the Department of Justice
to apply to the court for a modification of the terms of the order to
permit implementation of the November 9 agreement. Former
President Nixon, of course, opposed the modification. The Special
Prosecutor argued to the court that even if the former President were
the owner of the materials, the current Administration had a right
to use them in conducting important ongoing governmental business
and that the former President had no right to assert executive privilege
to prevent access to such use. In seeking this modification the Special
Prosecutor hoped that the Court would be convinced to separate a
prosecutor’s interests from that of others seeking access to the mate-
rials and to meet the need for an expeditious ruling on the request.

These hopes were not realized. The Court continued to defer
action on this request until it determined the entire matter relating to
all claimants. The motion to amend the temporary restraining order
was not granted immediately and, it appeared that there might be
extended litigation before the November 9 agreement could be carried
out. Accordingly, the Special Prosecutor resumed negotiations with
Miller in an effort to reach a mutually acceptable agreement to afford
the Special Prosecutor use of the limited number of materials that
were relevant to his investigations. These negotiations lasted for
approximately six weeks and included numerous meetings. Each side
drafted various proposals which were debated at length. Basically,
under the agreement as finally proposed, however, the Special Prose-
cutor would make requests similar to those he would have made under
the November 9 agreement. Miller, however, would review all re-
quested recordings as well as his client’s personal files, while WSPF
would review the files of White House staff members. The Special
Prosecutor would have the right of access to all materials pertinent
to the investigations designated in his requests that were located
during these reviews. In the end, however, this phase of the negotia-
tions failed to produce agreement. It became apparent that Miller,
either through insertion of specific language he wanted in the agree-
ment or merely by its timing, could use such an agreement as leverage
to attempt to prevent the then pending Presidential Recordings and
Materials Preservation Act from becoming law. The Special Prose-
cutor determined that it would be inappropriate to allow his office to
be placed in the posture of signing an agreement which could jeopardize
the chances that the bill would become law.

The Act as signed into law on December 19 did not make it possible,
however, for the Special Prosecutor to gain access to the materials
he sought without extended litigation. Indeed, on December 20

118

former President Nixon filed an action challenging the constitu-
tionality of the Act. WSPF and Miller then reopened negotiations,
which resulted in an informal understanding that was implemented
between late February and July, 1975. Under this agreement indices
of portions of the Nixon materials identified by the Special Prosecutor
were prepared by professional archivists. The Special Prosecutor, using
these various indices, designated files to be searched for materials
pertinent to investigations. He further described the investigations
to allow the person examining the files to determine which documents
were in fact pertinent to the specified investigations. With a limited
number of exceptions — those files that contained highly personal or
confidential communications of former President Nixon — the file
searches were conducted by archivists assigned to White House coun-
sel^ office. All documents located in any file reviewed that were relevant
to any of the specified investigations were supplied to WSPF. It was
agreed, however, that notes of Haldeman and Ehrlichman meetings
with the President would be turned over only if they pertained to the
specific investigation designated for the file in which they were found.
Furthermore, all requested recordings were reviewed by Miller or an
associate, and if there were any conversations on the recordings with
information pertinent to the Special Prosecutor’s investigations, copies
of those conversations were made available. WSPF was also permitted
to listen to any recording if there was any question as to its pertinence.
This procedure provided WSPF with much information needed for
pending trials and for conclusion of several investigations.

The final dealings with former President Nixon involved WSPF’s
taking of his testimony under oath, in the presence of two grand
jurors, in California on -June 23 and 24, 1975. A stipulation filed with
the court stated that the grand jury believed it was necessary to
obtain the testimony of the former President concerning several areas
of ongoing inquiry. Upon his representation that he was willing to
submit to questioning, but unwilling to travel to Washington because
of his doctor’s advice, and in view of other legal considerations, the
grand jury consented to a sworn examination in California. This
procedure was approved by the court and the transcript was later
presented to the full grand jury and made part of its minutes.

ACTIONS RELATED TO

PRESIDENT NIXON'S POSSIBLE CRIMINAL LIABILITY
Background

Speculation about the President’s possible involvement in
Watergate-related offenses, stemming largely from press reports, pre-
dated the appointment of the Special Prosecutor. Later, during
televised hearings before the Senate Select Committee, Sen. Howard

119

Baker repeatedly expressed this concern by asking "What did the
President know and when did he know it?” Responsibility for any
criminal investigation of this question was given to the Special Prose-
cutor. His charter gave "full authority for investigating and prose-
cuting . . . allegations involving the President.”

Direct evidence linking President Nixon to the Watergate cover-up
came from former White House counsel John Dean, when he testified
publicly before the Senate Select Committee in June 1973. Dean told
the Committee that President Nixon had discussed executive clemency
for Watergate burglar Howard Hunt with his former aide Charles
Colson, and that the President had approved the payment of money
to Hunt in return for his silence. Dean’s account of two crucial
meetings with Nixon and of the President’s approval of raising further
"hush money” was contradicted by former White House aide H. R.
Haldeman, who testified before the Committee that the President had
told Dean with respect to the money: "We could do that, but it would
be wrong.” In the Summer of 1973, at Cox’s request, WSPF staff
prepared the same kind of factual memorandum about any possible
criminal involvement of the President as had been prepared with
respect to other major actors. At this stage, the Watergate Task
Force memorandum relied heavily on Dean’s uncorroborated
testimony.

After the "Saturday Night Massacre” of October 20, 1973, WSPF
received seven subpoenaed tape recordings of Presidential conversa-
tions which had taken place from September 15, 1972, to April 16,
1973. Of particular significance was the tape of the March 21, 1973,
morning meeting among the President, Haldeman, and Dean, which
recorded the following discussion about payments to the Watergate
burglars :

President: How much money do you need?

Dean: I would say these people are going to cost, ah, a million
dollars over the next, ah, few years.

President: We could get that.

Dean: Um huh.

President: You, on, the money, you need the money. I mean,
ah, you can get the money, but its . . .

Dean: Well I think that we’re . . .

President: My point is, you can, you can get a million dollars,
and you can get it in cash. Ah, I know where it could be got.

Dean: Um huh.

President: I mean, ah, it’s not easy, but it could be done.
But, ah, the question is, who the hell would handle it?

Dean: That is right. Ah.

President: Any ideas on that?

Dean: Well I would think that would be something Mitchell
ought to be charged with.

President: I would think so too.

*******

120

President : That's right, that's why, that's why your immedi-
ate thing, you've got no choice with Hunt with a hundred and
twenty or whatever it is. Right?

Dean: That's right.

President: Would you agree that that's the buy time thing
and you better damn well get that done. ^

Dean: I think that he ought to be given some signal anyway
to, to . . .

President: . . . Well for Christ's sake get it, in a way that,
ah — who, who's gonna talk to him? Colson? He's the one who is
supposed to know him.

This tape recording and others received by the Special Prosecutor
in December substantially corroborated and added significantly to
Dean's allegations. In January 1974, and as argued later at the
cover-up trial, the Watergate task force concluded that President
Nixon had known prior to March 21, 1973, about the existence of a
conspiracy to obstruct justice on the part of his closest White House
aides and high officials of his Re-Election Committee, and that on
March 21, when the President learned many of the material details
of the cover-up and the potential criminal liability of those involved,
he had furthered the conspiracy by urging that a cash payment be
made to Howard Hunt to “buy time" and by discussing a possible
strategy of continuing the cover-up by limited disclosure of some
information together with continued concealment of the most damag-
ing evidence. On receiving this analysis, Special Prosecutor Jaworski
sought to determine whether an incumbent President could be in-
dicted for a crime.

Determining Whether to Seek the President's Indictment

Counsel to the Special Prosecutor and his staff conducted extensive
legal research to resolve whether the Constitution contemplated the
impeachment process as the exclusive means for adjudicating the
culpability of an incumbent President. As they found, that issue had
been largely ignored or only obliquely alluded to at the time of the
Constitutional Convention and in the ensuing 186 years.

The question of the President's indictability, which was viewed
in the office as obviously momentous in terms of its consequences
for the country, resulted in an intense debate among members of
the Special Prosecutor's staff. After examining the Constitution,
relevant case law, and the historical and contemporary arguments,
there appeared to be no textual basis in the Constitution for con-
cluding that an incumbent President — any more than an}^ other
Federal official subject to the impeachment process — is immune from
the ordinary process of criminal law prior to impeachment and
removal from office. Consequently, one approach was that, if a prima
facie case of obstruction of justice existed on the basis of known

121

evidence, an indictment of the President would be essential to vindi-
cate the principles that there should be equal justice for all and that
no one is above the law. This view held that a failure to indict the
incumbent President, in the face of evidence of his criminal activity,
would seriously impair the integrity of the criminal process. Such
impairment would be all the more severe because the President was
the very man in whom the Constitution reposes the final obligation
to ensure that the law is obeyed and enforced, and because his actions
appeared to have been designed to place himself and other individuals
beyond the reach of the law.

The other approach was that the impeachment process should
take precedence over a criminal indictment because the Constitution
was ambivalent on this point and an indictment provoking a neces-
sarily lengthy legal proceeding would either compel the President's
resignation or substantially cripple his ability to function effectively
in the domestic and foreign fields as the Nation's Chief Executive
Officer. Those consequences, it was argued, should result from the
impeachment mechanism explicitly provided by the Constitution,
a mechanism in which the elected representatives of the public conduct
preliminary inquiries and, in the event of the filing of a bill of impeach-
ment of the President, a trial based upon all the facts. Any indictment
could then be brought after those proceedings were completed. Under
this view, a single, unelected prosecutor should be hesitant to invoke
the criminal justice system, prior to the completion of pending im-
peachment hearings, especially when the constitutionality of such a
course remained in doubt. There was also concern that an indictment
of the President would suspend the impeachment proceedings until
after his criminal trial.

The Special Prosecutor concluded that the Supreme Court, if
presented with the question, would not uphold an indictment of the
President for the crimes of which he would be accused. Accordingly,
he thought it would not be responsible conduct to recommend that
the grand jury return an indictment against the President, partic-
ularly when the impeachment proceedings were ongoing. Since the
Special Prosecutor's charter mandated his investigating allegations
against the President and authorized reports to the Congress, he then
examined the legality of a grand jury presentment concerning Presi-
dent Nixon, and the possible transmission of evidence pertinent to
the question of his involvement to the House of Representatives.
After additional legal research and deliberation within the office, the
Special Prosecutor determined that this course of action would be
both constitutional and appropriate. It was his view that the House
of Representatives, in the first instance, was the appropriate body
under the Constitution to examine evidence relating to the President,
and to determine whether he should be charged with conduct justi-
fying impeachment and removal from office. Many alternatives for

122

the form of such a report were considered; the possibilities included a
presentment detailing all the evidence in narrative form, a conclusory
summary of grand jury findings of fact and conclusions of law, or a
transmission of relevant witness testimony without comment or con-
clusions. The Special Prosecutor advised the grand jury to submit a
report with evidence relating to the President to Judge Sirica, and to
recommend that the judge transmit such evidence to the House
Judiciary Committee.

In order to avoid any claim of unilateral action on the part of the
Special Prosecutor in the event that he should name the President as
a co-conspirator during pre-trial proceedings in the Watergate case,
Jaworski also sought the grand jury’s judgment on his opinion that
the President was a member of the charged conspiracy and that
evidentiary considerations at a cover-up trial mandated naming the
President as a participant in the conspiracy. Thus, when the grand
jury voted to indict seven men in connection with the Watergate
cover-up, it also voted to name Richard M. Nixon as one of the 18
unindicted co -conspirators in an alleged conspiracy to obstruct
justice.

At the time the grand jury handed up the indictment on March 1,
it also submitted a Report and Recommendation advising the Chief
Judge that it “had heard evidence that it regards as having a material
bearing on matters within the primary jurisdiction” of the House
Judiciary Committee in its impeachment inquiry, but that it ought
“to defer to the House of Representatives” in determining what action
was warranted by the evidence. The grand jury recommended that
the sealed materials accompanying the report be transmitted to the
House Judiciary Committee. The materials included 12 recordings of
Presidential conversations and testimony pertinent to President
Nixon’s involvement in the Watergate matter.

In a March 6 hearing before Judge Sirica on the disposition of the
grand jury report, James St. Clair announced for the President that
he would furnish to the Judiciary Committee all the materials that had
previously been furnished to the Special Prosecutor’s office. The
Special Prosecutor’s counsel argued that the materials the White
House had agreed to supply to the Committee were not necessarily
the same as those the grand jury asked the court to transmit to the
Committee. John Doar and Albert Jenner, appearing on behalf of
the Committee, requested that the Court deliver the grand jury
report to enable the Committee to discharge its constitutional obliga-
tion with the aid of the best information available. In a March 8
letter from Committee Chairman Peter Rodino to Judge Sirica,
Rodino stated that a unanimous resolution of the Committee reflected
its view that in constitutional terms it would be unthinkable if the
material was kept from the House of Representatives. Judge Sirica

123

ruled on March 18 that the grand jury report and accompanying
materials should be delivered to the Committee.

On March 20, two defendants named in the Watergate cover-up
indictment, H. R. Haldeman and Gordon Strachan, filed a petition
for a writ of mandamus with the Court of Appeals to block the
delivery of the materials to the Corpmittee. The next day, the Court
denied the petition, stating that the President, as the focus of the
grand jury report and the person who presumably would have the
greatest interest in its disposition, interposed no objection to the
District Court’s action. As a result, the report was delivered to the
House Judiciary Committee on March 26. In addition, the President
delivered to the Committee the materials he had given to the Special
Prosecutor. These included 12 recordings related to Watergate,
seven related to ITT, dairy, and “Plumbers” matters, and numerous
documents relevant to these areas.

Cooperation With the House Judiciary Committee

H. Res. 803, adopted x by the House of Representatives on February
6 by a vote of 410 to 4, explicitly authorized the House Judiciary
Committee to investigate whether grounds existed for the impeach-
ment of Richard Nixon. The resolution also granted the Committee
the power of subpoena for its investigation. Preliminary discussions
on liaison between the staff of the House Judiciary Committee and
the Special Prosecutor’s office had been held more than two months
earlier. In a meeting on November 20, 1973, between attorneys from
the Special Prosecutor’s office and the Judiciary Committee, Deputy
Special Prosecutor Ruth had assured the Committee of WSPF’s
cooperation so long as such cooperation did not interfere with WSPF
investigations and trials and investigative sources were protected.

Ruth’s pledge was subsequently honored by WSPF, despite a
minor problem which arose in February 1974, when the Committee
requested a detailed list of recordings, documents and other material
the Special Prosecutor had received from the White House, plus a
list of the requests for evidence that had not been met. Special Prose-
cutor Jaworski’s original position was that Rule 6(e) of the Federal
Rules of Criminal Procedure, which bars disclosure of matters occur-
ring before a grand jury, prevented him from revealing this informa-
tion. However, when St. Clair stated he had no objection, Jaworski
supplied the Committee with the requested lists. On February 25,
after the Judiciary Committee received the list of materials obtained
by the Special Prosecutor from the White House, Doar asked the
White House to furnish the Committee with copies of certain materials,
including 19 tape recordings of Presidential conversations theretofore
given to the Special Prosecutor, and all tape recordings, notes and

124

other writings relating to 42 specifically identified Presidential
conversations which had not been supplied to the Special Prosecutor. 1

As the Judiciary Committee’s inquiry progressed, its attorneys
recognized the need to gain access to materials under seal of the court
in a number of “Watergate’ ’-related cases. In each instance, the
Committee directed a formal motion to the court, with a request to
the Special Prosecutor to state his position. Responding to such an
application in April by the Committee, 2 Jaworski stated that he had
no objection to having Committee staff review the material but was
opposed to unsealing it. In one instance, Jaworski opposed access
to the record of the medical examination of ITT lobbyist Dita Beard
on the grounds that the results of the examination were not relevant
to the Committee’s inquiry and that disclosure would be unwarranted
intrusion on Beard’s rights. Jaworski also objected to access to grand
jury testimony submitted to Judge Gesell in the prosecution of former
White House aide Dwight Chapin, due to the provisions of Rule
6(e). In May, the Judiciary Committee again requested access to
additional materials sealed by the court, 3 and again Jaworski was
asked to state his position. The Special Prosecutor replied that he
had no objection to the granting of the Committee’s access to these
materials, since they did not appear likely to prejudice any individuals.
In addition to sealed materials, the Judiciary Committee also re-
quested copies of the grand jury testimony of Egil Krogh, David

1 The 42 Presidential conversations were not provided, and on April 11, 1974,
the House Judiciary Committee issued the first of eight subpoenas directed to the
President. In partial response to the subpoena, the President on April 30 supplied
to the Committee, and released publicly, edited transcripts of 31 of the 42 sub-
poenaed conversations, claiming that the other 11 conversations had either not
been recorded or could not be located. On May 1, the Judiciary Committee
formally advised the President by letter that he had failed to comply with its
subpoena. The President’s failure to comply with this and other subpoenas
formed the basis for Article III of Impeachment later adopted by the House
Judiciary Committee.

2 The application sought material under seal in connection with the following
matters: United States v. Chapin , Crim. No. 990-73; United States v. Krogh , Crim.
No. 857-73; In Re Grand Jury Proceedings , Misc. 47-73; In Re Grand Jury Pro -
ceedings , Misc. 108-73; United States v. Liddy, et at., Crim. No. 1827-72; Halperin
v. Kissinger , et al ., Civil No. 1187-73; Ellsberg , et at. v. Mitchell , et al., Civil No.
1879-72; Nader v. Internal Revenue Service , Civil No. 1851-72; Nader v. Butz ,
Civil No. 148-72; Common Cause v. Finance Committee to Re-Elect the President ,
et al.. Civil No, 1780-72.

3 These were the May 13, 1974, transcript of in camera hearings on the Pres-
ident’s motion to quash the April 18 subpoena issued in United States v. Mitchell ,
et al., the May 13, 1974, transcript of in camera hearings on the tape experts’ report
and a pre-publication copy of the report. In addition, the Judiciary Committee
requested permission to listen to the June 20, June 30 and September 15, 1972,
conversations to determine whether they were relevant to the Committee’s
inquiry.

125

591-439 0 - 75 -9

Young and Henry Petersen in connection with the indictment re-
turned in the Fielding break-in case. This testimony was supplied to
the Committee by the court.

The Special Prosecutor’s office also supplied information directly
to the Committee throughout the impeachment inquiry. The basis
for WSPF’s action was set forth in a May 8 letter from Jaworski to
Doar in which the Special Prosecutor stated his understanding that,
although WSPF was being asked to provide the information volun-
tarily, the Committee was prepared to fulfill its responsibilities
by issuing subpoenas. On the basis of this understanding, Jaworski
determined that his office would furnish such relevant information
requested by the Committee as it possessed, within the bounds of
relevant laws and regulations. Jaworski also informed Doar that
WSPF staff attorneys would contact Committee staff attorneys to
coordinate the furnishing of requested information.

On May 9, Ruth notified WSPF task force leaders of the pro-
cedures to be followed in providing information to the Committee:
there could be no disclosure of testimony presented before a grand
jury; no disclosure of information received from the White House
(Doar was arranging to receive from St. Clair what the White House
had supplied to the Special Prosecutor) ; documentary evidence would
be furnished only when the source of the information consented (the
same procedure used with the Senate Select Committee) ; only informa-
tion directly related to possible Presidential involvement would be
furnished ; confidentiality of witnesses would be preserved if necessary ;
and no notes of office interviews were to be supplied. Ruth further
directed that WSPF staff members recommend the names of witnesses
to be interviewed by the Committee and the topics to be covered in
such interviews.

Pursuant to this arrangement, the Special Prosecutor’s office
provided the impeachment inquiry staff with numerous investigative
leads and with non-grand jury materials. Doar was permitted to exam-
ine, in the Special Prosecutor’s office, a summary memorandum con-
cerning “allegations involving the President.” In addition, the
Committee reviewed WSPF’s copies of White House transcripts of
Nixon-Dean conversations between September 15, 1972, and April 16,
1973, to determine if there were any discrepancies between them and
the transcripts published in the President’s submission to the Com-
mittee. The prosecutors also attempted to save the Committee’s
time by steering its investigation away from allegations that WSPF
had already determined to be frivolous or unfounded.

Since one of its areas of investigation was the relationship between
the White House and WSPF and the extent of White House coopera-
tion with the Special Prosecutor, the Committee requested and re-
ceived from the Special Prosecutor’s office copies of correspondence
and memoranda relating to material sought from the White House

126

by Special Prosecutors Cox and Jaworski. WSPF also supplied to the
Committee materials on Cox’s relations with the White House and
with Attorney General Richardson and on Jaworski’s relations with
the White House.

Cooperation between WSPF and the Committee was mutual.
The Special Prosecutor requested information from the Committee
to provide defendants with prior statements and testimony of Govern-
ment witnesses relating to their trial testimony as well as any material
in the Government’s possession favorable to the defendants. Although
WSPF contended that transmission of Congressional testimony to
defendants was not required by law, the Office voluntarily provided
such information, including Committee staff interviews of Egil Krogh
for the Fielding break-in trial, staff interviews and statements of
individuals connected with the Watergate cover-up trial, and staff
interviews and documents of individuals having knowledge of Presi-
dent Nixon’s tax returns and personal finances.

As a result of the Committee’s investigation, on June 18 and 19,
1974, Doar presented to the Committee a “Statement of Information”
containing evidence on the events that led to the appointment of
Elliot Richardson as Attorney General, the creation of the Watergate
Special Prosecution Force, the appointment of Archibald Cox, the
authority and jurisdiction of the Special Prosecutor’s office, the investi-
gations initiated by the Special Prosecutor and the response of Presi-
dent Nixon to those investigations, the issuance of subpoenas to the
President, the litigation arising out of his refusal to comply with
those subpoenas, the firing of Cox, the appointment of Leon Jaworski,
and the court hearings on the 18% minute erasure on the June 20,
1972, tape.

On July 29, by a vote of 28 to 10, the Committee adopted a second
Article of Impeachment against President Nixon. Article II charged
that the President had:

. . . repeatedly engaged in conduct violating the constitu-
tional rights of citizens, impairing the due and proper administra-
tion of justice and the conduct of lawful inquiries, or contravening
the laws governing agencies of the executive branch and the
purposes of these agencies.

As an example of such conduct, the Committee stated:

In disregard of the rule of law, he knowingly misused the
executive power by interfering with agencies of the executive
branch, including the Federal Bureau of Investigation, the
Criminal Division and the Office of Watergate Special Prosecution
Force, of the Department of Justice, and the Central Intelligence
Agency, in violation of his duty to take care that the laws be
faithfully executed.

As supporting evidence for its conclusion that President Nixon
had impeded the Special Prosecutor’s investigation, the Committee

127

noted the White House delay in making information available to the
Special Prosecutor and, in some cases, withholding documents, the
concealment of the White House taping system, the firing of Cox,
and the refusal to cooperate with Jaworski.

The President's Resignation; Further Consideration Of Indictment

On July 24, 1974, the Supreme Court announced its unanimous
decision in United States v. Nixon and ordered the President to turn
over additional tape recordings of Presidential conversations sub-
poenaed for use in the Watergate cover-up trial then scheduled to
begin in September. Among the subpoenaed conversations \vere those
of June 23, 1972, between H. R. Haldeman and the President. On
Monday, August 5, St. Clair and Alexander Haig, the President’s
chief of staff, telephoned Jaworski to inform him that the June 23
tape recording revealed the President’s early knowledge of the Water-
gate cover-up and a possible violation of law in his misuse of a Federal
agency. On Thursda}", August 8, Jaworski met with Haig, at the
latter’s request. Jaworski later told members of his staff that Haig
had called the meeting to inform him of the President’s decision to
resign, but that during the meeting no promises or understandings of
any kind had been either requested or offered. In a statement issued
immediately after the President’s resignation announcement, the
Special Prosecutor said :

There has been no agreement or understanding of any sort
between the President or his representatives and the Special
Prosecutor relating in any way to the President’s resignation.

The Special Prosecutor’s Office was not asked for any such
agreement or understanding and offered none. Although I was
informed of the President’s decision this afternoon, my office did
not participate in any way in the President’s decision to resign.

President Nixon’s resignation became effective at noon on Friday,
August 9. Shortly thereafter Jaworski was contacted by Herbert J.
Miller, Jr., an attorney for the former President. During several
meetings between Jaworski and Miller in August, Miller argued that
the former President should not be indicted because the massive
publicity resulting from both the impeachment proceedings and his
resignation would make it impossible to select an impartial jury.
On September 4, Miller submitted to the Special Prosecutor an
extensive memorandum supporting this view. Research by the WSPF
staff disputed Miller’s position, however, and Jaworski concluded that
any prosecution of the former President might require a nine-month
to one-year delay in bringing a case to trial in order to allow existing
and foreseeable pre-trial publicity to dissipate.

Another question raised in the wake of the resignation was whether
the former President should be included as a defendant in the Water-

128

gate cover-up case. Jaworski invited members of WSPF’s legal staff
to submit their views on this question and other issues surrounding
possible . criminal action against the former President, and many did.
Since it was evident to the Special Prosecutor and to staff members
that inclusion of the former President would entail considerable if
not indefinite delay of the trial, which was then scheduled to begin
on October 1, Jaworski decided against such inclusion. He also decided
to defer any criminal action against the former President until the
cover-up jury was sequestered, to eliminate the possibility that the
jurors might be subjected to additional pre-trial publicity.

The Pardon

On August 28, President Ford held a nationally televised press
conference, his first since taking office. During that press conference,
the President answered several questions regarding a possible pardon
for his predecessor :

Q : Mr. President, aside from the Special Prosecutor’s role, do
you agree with the Bar Association that the laws apply equally
to all men, or do you agree with Governor Rockefeller that former
President Nixon should have immunity from prosecution, and
specifically, would you use your pardon authority, if necessary?

A: Well, let me say at the outset that I made a statement in
this room in the few months [sic] after the swearing-in, and on
that occasion I said the following: That I had hoped that our
former President, who brought peace to millions, would find it for
himself.

# Now, the expression made by Governor Rockefeller, I think,
coincides with the general view and the point of view of the
American people. I subscribe to that point of view, but let me
add in the last ten days or two weeks I have asked for prayers
for guidance on this very important point.

In this situation, I am the final authority. There have been no
charges made, there has been no action by the courts, there has
been no action by any jury, and until any legal process has been
undertaken, I think it is unwise and untimely for me to make any
commitment.

****** *

Q: May I just follow up on Helen’s question: You are saying,
sir, that the option of a pardon for former President Nixon is
still an option that you will consider, depending on what the courts
will do.

A: Of course, I make the final decision. Until it gets to me,
I make no commitment one way or the other. But I do have the
right as President of the United States to make that decision.

Q: And you are not ruling it out?

A : I am not ruling it out. It is an option and a proper option
for any President.

Q: Do you feel the Special Prosecutor can in good conscience
pursue cases against former top Nixon aides as long as there is

129

the possibility that the former President may not also be pursued
in the courts?

A: I think the Special Prosecutor, Mr. Jaworski, has an obli-
gation to take whatever action he sees fit in conformity with his
oath of office, and that should include any and all individuals.

* * * * * * *

Q: Mr. President, you have emphasized here your option of
granting a pardon to the former President.

A: I intend to.

Q : You intend to have that option. If an indictment is brought,
would you grant a pardon before any trial took place?

A : I said at the outset that until the matter reaches me, I am
not going to make any comment during the process of whatever
charges are made.

Jaworski had made it plain to staff members that he would not
seek the former President’s indictment if President Ford intended
to pardon him. Accordingly, he met with Philip W. Buchen, President
Ford’s counsel, on September 4. Jaworski reported later to staff
members that during this meeting he had advised Buchen that the
President’s statements at the press conference had put the Special
Prosecutor in a “peculiar position” since the President’s comments
suggested that any action taken by WSPF against former President
Nixon might prove to be futile. Jaworski also reported that he had
made no recommendation to Buchen concerning a possible pardon,
since he considered the issue to be wholly the President’s prerogative
and felt that it would be inappropriate for him to make an unsolicited
recommendation. At Buchen’s request as to the probable length of time
between an indictment and a trial, Jaworski delivered to him a letter
expressing the following view on trial delay :

The factual situation regarding a trial of Richard M. Nixon
within constitutional bounds, is unprecedented. It is especially
unique in view of the recent House Judiciary Committee inquiry
on impeachment, resulting in a unanimous adverse finding to
Richard M. Nixon on the Article involving obstruction of justice.
The massive publicity given the hearings and the findings that
ensued, the reversal of judgment of a number of the members of
the Republican Party following release of the June 23 tape re-
cording, and their statements carried nationwide, and finally,
the resignation of Richard M. Nixon, require a delay, before
selection of a jury is begun, of a period from nine months to a
year, and perhaps even longer. This judgment is predicated on a
review of the decisions of United States Courts involving prejudicial
pre-trial publicity. The Government’s decision to pursue im-
peachment proceedings and the tremendous volume of television,
radio and newspaper coverage given thereto, are factors em-
phasized by the Courts in weighing the time a trial can be had.
The complexities involved in the process of selecting a jury and
the time it will take to complete the process, I find difficult to
estimate at this time.

The situation involving Richard M. Nixon is readily dis-
tinguishable from the facts involved in the case of United States v.

130

Mitchell , a/., [the Watergate cover-up case] set for trial on

September 30th. The defendants in the Mitchell case were in-
dicted by a grand jury operating in secret session. They will be
called to trial, unlike Richard M. Nixon, if indicted, without
any previous adverse finding by an investigatory body holding
public hearings on its conclusions. It is precisely the condemnation
of Richard M. Nixon already made in the impeachment process,
that would make it unfair to the defendants in the case of United
States v. Mitchell , et al ., for Richard M. Nixon now to be joined
as a co-conspirator, should it be concluded that an indictment
of him was proper.

The United States v. Mitchell , et al., trial will within itself
generate new publicity, some undoubtedly prejudicial to Rich-
ard M. Nixon. I bear this in mind when I estimate the earliest
time of trial of Richard M. Nixon under his constitutional guar-
antees, in the event of indictment, to be as indicated above.

During their meeting, Jaworski also submitted to Buchen a memo-
randum prepared by Deputy Special Prosecutor Ruth, listing ten
matters under investigation which “may^ prove to have some direct
connection to activities in which Mr. Nixon is personally involved.”
The memorandum cautioned that “none of these matters at the
moment rises to the level of our ability to prove even a probable
criminal violation by Mr. Nixon.” The memorandum explicitly stated,
however, that it was not intended to deal with the former President's
possible liability in connection with the Watergate cover-up.

On September 8 President Ford granted a “full, free and absolute”
pardon to former President Nixon for all offenses committed during
Mr. Nixon's tenure as President (January 20, 1969, through August 9,
1974). President Ford's action generated extensive discussion and legal
research by WSPF.

This focused upon two possible theories to challenge the pardon.
First, was it invalid because it preceded any indictment or conviction?
And second, despite the President's inherent constitutional powers to
control all law enforcement decisions, whether by directing that an
investigation not proceed, ordering an indictment dismissed, or grant-
ing a pardon, had the President voluntarily bound himself through the
Special Prosecutor's charter not to exercise his constitutional pardon
powers when the exercise of that power would interfere with the inde-
pendent judgment of the Special Prosecutor to decide whom to
prosecute?

The Special Prosecutor initially declined to make public any of his
views concerning the pardon in view of the approaching Watergate
trial and the order of the court regarding pre-trial publicity. Later,
after the Watergate trial jury had been sequestered, he stated the
basis of his decision not to challenge the validity of the pardon in a

131

letter to Attorney General William Saxbe, dated October 12, which
accompanied his letter of resignation as Special Prosecutor:

Although not appropriate for comment until after the sequester-
ing of the jury in United States v. Mitchell , et al ., in view of sugges-
tions that an indictment be returned against former President
Richard M. Nixon questioning the validity of the pardon granted
him, I think it proper that I express to you my views on this subject
to dispel any thought that there may be some relation between my
resignation and that issue.

As you realize, one of my responsibilities, not only as an
officer of the court, but as a prosecutor, as well, is not to take a
position in which I lack faith or which my judgment dictates
is not supported by probable cause. The provision in the Constitu-
tion investing the President with the right to grant pardons,
and the recognition by the United States Supreme Court that
a, pardon may be granted prior to the filing of charges are so clear,
in my opinion, as not to admit of doubt. Philip Lacovara, then
Counsel to the Special Prosecutor, by written memorandum on
file in this office, came to the same conclusion, pointing out that :

. . the pardon power can be exercised at any time after
a federal crime has been committed and it is not necessary that
there be any criminal proceedings pending. In fact, the pardon
power has been used frequently to relieve federal offenders of
criminal liability and other penalties and disabilities attaching
to their offenses even where no criminal proceedings against the
individual are contemplated.”

I have also concluded, after thorough study that there is
nothing in the charter and guidelines appertaining to the office
of the Special Prosecutor that impairs or curtails the President's
free exercise of the constitutional right of pardon.

I was co-architect along with Acting Attorney General Robert
Bork, of the provisions some theorists now point to as inhibiting
the constitutional pardoning power of the President. The additional
safeguards of independence on which I insisted and which
Mr. Bork, on former President Nixon's authority, was willing to
grant were solely for purposes of limiting the grounds on which
my discharge could be based and not for the purpose of enlarging
on the jurisdiction of the Special Prosecutor.

Hearings held by the Senate Judiciary Committee subsequent
to my appointment make it clear that my jurisdiction as Special
Prosecutor was to be no different from that possessed by my
predecessor.

There was considerable concern expressed by some Senators
that Acting Attorney General Bork, by supplemental order, in-
advertently had limited the jurisdiction that previously existed.
The hearings fully developed the concept that the thrust of the
new provisions giving me the aid of the Congressional “consensus”
committee were to insulate me from groundless efforts to terminate
my employment or to limit the jurisdiction that existed. It was
made clear, however, that there was no “redefining” of the juris-
diction of the Special Prosecutor as it existed from the beginning.
There emerged from these hearings the definite understanding that
in no sense were the additional provisions inserted in the Special
Prosecutor's Charter for the purpose of either enlarging or diminish-

132

ing his jurisdiction. I did stress, as I argued in the Supreme Court
in U.S . v. Nixon , that I was given the verbal assurance that I
could bring suit against the President to enforce subpoena rights,
a point upheld by the Court. This, of course, has no bearing on the
pardoning power.

I cannot escape the conclusion, therefore, that additional
provisions to the Charter do not subordinate the constitutional
pardoning power to the Special Prosecutor's jurisdictional rights.
For me now to contend otherwise would not only be contrary to
the interpretation agreed upon in Congressional hearings — it also
would be, on my part, intellectually dishonest.

Thus, in light of these conclusions, for me to procure an indict-
ment of Richard M. Nixon for the sole purpose of generating a
purported court test on the legality of the pardon, would consti-
tute a spurious proceeding in which I had no faith; in fact, it
would be tantamount to unprofessional conduct and violative of
my responsibility as prosecutor and officer of the court.

133

Concluding Observations
and Recommendations

Normally when prosecutors are asked to recommend reforms, the
questions are limited to the criminal justice system. But most of what
WSPF personnel experienced in criminal justice was dramatically
atypical of criminal justice generally. The prosecutors had adequate
resources; defendants were not jailed for long periods of time prior to
trial; the courts had time and resources to meet all the demands of
Watergate litigation in a detached, unhurried atmosphere; private
defense counsel brought all their skills to thorough pretrial investiga-
tion, legal attack, trial strategy and fully-briefed appeals; the sections
of Federal prisons in which convicted Watergate defendants served
their terms all lacked the small, inhuman spaces in which most Ameri-
can criminals reside, locked into their idleness for 17 hours each day;
and constant press and public scrutiny provided a careful watchdog to
make sure that Government investigations proceeded without abuse
of power or undue leniency. Watergate did not educate American
citizens about the normal, day-to-day criminal justice process.

In considering what recommendations to include in this report,
WSPF concentrated on what it did observe: criminal abuse of power
by Government officials in high places ; historical growth of secrecy in
the Federal executive branch unchecked by Americans and their
elected Congress; unchallenged, subjective judgments by the executive
branch in identifying persons and organizations that constitute an
impermissible threat to the national interest and to executive policy;
an undemocratic condition wherein money is power, and skillful,
cynical public relations cements that power; and finally, a silent,
sometimes grudging, sometimes willful conclusion by some Govern-
ment representatives that ethical standards are irrelevant because
quick implementation of policy goals is mandatory, but achievable
only by social and personal injustices to others.

These conclusions all arose from observing how Government
officials and agencies actually grapple with the legitimate demands
upon them. The demands of national security require extraordinary
judgment. The separation of powers concept requires judicious use of
the privilege doctrine. Politicians cannot be elected without extensive
campaign funds and loyal friends who want rewards. Individual

m

requirements for personal success seem always to demand that one
must “ride with the system.” And a leader hoping to implement his
policies is loathe to choose anyone whose independence or unpredict-
able mind may eventually undermine or delay those goals.

These demands have always had, and will continue to have, in-
herent potential for abuse of power. National security can easily be
used to justify unconstitutional actions, and executive privilege can
then be invoked to justify the failure to disclose these actions. Sub-
jective distrust can be identified mistakenly with a national need
that justifies massive intelligence systems with permanent storage
and illicit use of personal information. Political survival, rationalized
by one’s perceived ability to accomplish the national will, can too
easily justify the acceptance of “big money” and the granting of
instant access to any friend of one’s cause or one’s administration. The
leader who sets out to accomplish his goals may appoint as executives
only those who helped him along the political path and who will
give him support that disregards independent analysis or the demands
of personal will and courage.

This brief and, by no means, original or exclusive catalog should
sound familiar to all readers of this report. Many of the Watergate
phenomena had their historical precedents. Many had grown with no
deterrence from other branches of Government. Others had grown
without questions from the people and from the press. Watergate
should not be analyzed merely in the context of each individual
abuse of power that prosecutors were told to investigate. As with
any coalescing of activities that lead to a national crisis, so too did
Watergate grow from historical roots that presaged abuses of institu-
tional power.

If Watergate was an insidious climax to recent and hitherto subtle
historical trends, the formulation of recommendations must begin with
the simple, but basic, observation that democracies do not survive
unless elected officials do what they are supposed to do and citizens
maintain vigilance to see that they do. The public unfolding of Water-
gate abuses resulted from citizen, press and official actions. Nothing
can replace that kind of vigilance; and recommendations for new laws
or new institutions are insignificant when compared to the stubborn,
plodding, daily work of Americans and their elected representatives
in watching over and channeling the power of their national Govern-
ment, the power of concentrated wealth, the power of officially spoken
and written words, and the power of secret bureaucracies.

As prosecutors searching only for facts that disclose or disclaim
criminal activity, WSPF lacks the expertise to propose a broad base
of political and social change. The recommendations that follow are
not so intended. The proposals are modest but their implementa-
tion would probably help. Most appear easy and obvious. But that is
a good way to start testing a Nation’s willingness to learn from its past.

135

RECOMMENDATIONS

Protecting the Integrity and Effectiveness of the Prosecution Function

The integrity of Government officials, from the President down,
depends in part on the credibility of criminal statutes as a deterrent
to misconduct. This credibility in turn depends on the capacity of
the system of justice to investigate and prosecute wrongdoing wherever
it occurs. At a minimum, this means that the Department of Justice
must be capable of exercising it prosecution functions free of undue
influence or conflicts of interest. At the same time, many of the
functions of the Department are legitimate subjects of Presidential
concern on a policy level, and the President needs as Attorney General
a legal adviser in whom he has full confidence. Tf the Department is
properly insulated from partisan politics and from service to an
Administration's purely political interests, it would not seem neces-
sary to take the major institutional steps of making the Attorney
General's office elective or creating a permanent special prosecutor's
office.

Independence oj Department of Justice Officials. The President
should not nominate and the Senate should not confirm as Attorney
General, or as any other appointee in high Department of Justice
posts, a person who has served as the President's campaign manager
or in a similar high-level campaign role. A campaign manager seeks
support for his candidate and necessarily incurs obligations to political
leaders and other individuals throughout wide geographical areas. If
he then takes a high position in the Justice Department, he may take —
or appear to take — official actions on the basis of those commitments
rather than on appropriate legal and policy grounds. The Attorney
General and other Justice Department appointees should be lawyers
with their own reputations in the legal profession, with capacity and
willingness to make independent judgments, and with the authority
to choose similarly qualified persons for subordinate positions. In
advising and consenting on Presidential nominees, Senators should
apply to Justice Department appointees standards of character and
independence similar to those they apply to nominees for the Supreme
Court. Similar standards should attach to the appointment and
confirmation of United States Attorneys.

The Hatch Act, which prohibits most Federal employees from
taking an active part in political management or campaigns, should
be amended to apply to all employees of the Department of Justice,
including the Attorney General . 1 However, the amendment should
make clear that high Department officials are not violating the

1 Current penalty provisions may not be suited to such a revision. If an
amendment is contemplated, thought must be given to appropriate sanctions for
violations.

136

prohibition of political activity when they discuss and defend De-
partment policies and actions on their merits in public forums.

Contacts About Pending Cases. In August 1973, Attorney General
Richardson issued Order No. 532-73, requiring all Justice Department
employees to record in memorandum form each oral communication
“concerning a case or other matter pending before the Department
with a non-involved party indicating an interest in the case or matter.”
This order was meant to deter improper contacts by creating a written
record of any attempt to influence Department handling of cases.

Subsequent debate within the Department of Justice has questioned
the breadth of the order and the lack of an enforcement mechanism.
For example, the memorandum as now written could include casual
social contacts in which a total stranger voices a citizen view about
a pending Department matter.

The Attorney General should resolve these problems of coverage
and reissue the Order. Attempted political persuasion and other
efforts by non-involved parties to secure direct, out-of-channel access
to Department personnel should all be part of official records.

Increased Federal Efforts Against Corruption Without Creation of a
Permanent Special Prosecutor . The Senate Select Committee reacted
to their Watergate hearings by recommending the creation of a
permanent special prosecutor’s office. The proposed new officer would
be appointed by the judiciary and confirmed by the Senate. He would
be independent of the Attorney General in making all his decisions
and have jurisdiction over most corrupt acts committed b}^ Federal
employees and also over political campaign crimes.

The principal reason cited for such an institution is the perceived
incapacity of the Justice Department to investigate fully allegations
of criminal conduct by high officials. Since the Attorney General is
a Presidential appointee, it is argued, his subordinates cannot be
expected to seek or uncover misconduct by high officials whose prose-
cution might embarrass the President. The problem is most acute, of
course, when the alleged wrongdoer is the President himself ; but it is
substantial when the subject of investigation is a Presidential appointee
at any level. Justice Department investigators may be equally
frustrated in efforts to prosecute the President’s judicial appointees or
political allies in Congress; even members of Congress who belong to
the opposing party may be immune from prosecution because of a
“live and let live” political tradition that survives changes of Adminis-
tration and protects politicians even after they leave office. An
independent special prosecutor, not subject to such considerations,
would pursue wrongdoing in Government solely on an objective
basis.

No one who has watched “Watergate” unfold can doubt that the
Justice Department has difficulty investigating and prosecuting high
officials, or that an independent prosecutor is freer to act according

137

to politically neutral principles of fairness and justice. But the question
is whether such independence should be institutionalized on a perma-
nent basis. Do the advantages of such a step outweigh its disadvan-
tages?

WSPF is opposed to the idea of extending the special prosecutor
concept on a permanent basis. Central to the question is the fact that
such a public officer would be largely immune from the accountabilit}^
that prosecutors and other public officials constantly face. Lack of
accountability of an official on a permanent basis carries a potential
for abuse of power that far exceeds any enforcement gains that might
ensue. An independent prosecutor reports directly on ongoing investi-
gations to no one, takes directions from no one and could easily abuse
his power with little chance of detection. Although matters that reach
court obviously invoke court control over a prosecutor’s public con-
duct, the discretionary process of initiating and conducting investi-
gations bears great potential for hidden actions that are unfair,
arbitrary, dishonest, or subjectively biased.

Ordinarily, prosecutors are accountable either directly to the
electorate or indirectly through the elected officials who appoint
them. Under proposed legislation, a permanent special prosecutor
would not be subject to such accountability. In extraordinary situa-
tions such as “Watergate,” an independent prosecutor can be held
accountable directly to the public because his actions are subject to
intense and continuous press scrutiny. But such high visibility cannot
be expected for a permanent office dealing day to day with less explo-
sive matters.

Much of the Watergate and preceding abuses resulted from the
public’s delegation of public responsibilities to powerful men whose
judgments were trusted and whose claimed need for secrecy was
always accepted. Men with unchecked power and unchallenged trust
too often come to believe that their own perceptions of priorities and
the common good coincide with the national will. There is no reason
to believe that, in the long run, an independent special prosecutor’s
office would avoid this status.

Other problems exist. Anyone who has observed bureaucracies
realizes that a “special” organization rarely retains its “special”
qualities beyond a 3-year period. New organizations, large or small,
start with a burst of speed, energy, imagination, enthusiasm, flexibility,
long daily hours, and almost uniform high quality of personnel. That
level is hardly ever maintained over a long period by a permanent
organization in either the public or private sector. This is a problem
for Government generally and should be addressed as such, not just
as to law enforcement. But there is no reason to believe that a per-
manent special prosecutor’s office would be immune from the rigidity
that comes over most organizations after the initial period. Indeed,
this would probably happen to the Watergate Special Prosecution

138

Force if it were to continue beyond the period in which it has been
needed. Such rigidity is especially likely, and especially harmful, in
an agency that is as upaccountable as a permanent special prosecutor
would be.

A third reason for opposing the proposed new office relates to
problems with which WSPF constantly wrestled. Should our inter-
pretation of the campaign laws, the coverage of statutes of limitation,
and the perjury, false statement, and obstruction statutes coincide
with those of the Justice Department? Should our policies regarding
the use of various intrusive investigative techniques coincide with
the Attorney General's? One is moved to answer in the affirmative,
since those policies are promulgated under normal democratic condi-
tions of accountability and since different policies easily lead to
unequal justice. These policy determinations provide great potential
for a special prosecutor's abuse of power. He can easily stretch from
proper investigative techniques or attempt unfairly to widen the
conduct or the persons included within a criminal sanction. Thus, that
relatively small group of persons falling within a permanent special
prosecutor's jurisdiction could be subject to a much heavier hammer of
Federal criminal law than the rest of the Nation which is subject to
Department of Justice standards.

In looking for alternatives to a permanent, independent prose-
cutor, one must first turn to the problem of resource allocation. When
the Department of Justice commenced a specialized, intensive effort
against organized crime in 1958 — with a dramatic expansion in
1961 — prosecutors found a nationwide string of racketeering enter-
prises that only a few enforcement personnel had thought existed.
So too, in recent years, with adequate resources and personnel the
United States Attorneys for the Southern District of New York, the
’Northern District of Illinois, Maryland, Florida, New Jersey and
elsewhere were able to uncover extensive Federal corruption. Thus,
these Justice Department representatives have prosecuted Federal
executives, members of Congress and a Vice President.

This visible, concentrated effort should be institutionalized within
the Department of Justice. An effort similar to that devoted to
organized crime should be placed in an expanded section within the
Criminal Division or, similar to the proposal of Senators Baker and
Percy, in. a new Division of Government Crimes with an Assistant
Attorney General appointed by the President. This new office should
also have constant coordination and monitoring responsibilities with
the various Inspectors General who now inquire into possible corrup-
tion in the Federal executive departments.

In addition, the Attorney General should freely exercise his
existing power to appoint special assistants as prosecutors, with
independence for particular investigations and cases, whenever a
real or apparent conflict of interest threatens public confidence in

139

the enforcement system. On several occasions, WSPF borrowed
lawyers from the Department and special assistants can be afforded
the same advantage for their staffs.

Finally, the absence of a permanent, independent prosecutor
need not dispel the idea that an independent prosecution office can
be appointed in the future when activities by the executive, legislative
or judicial branches of Government show the necessity of a temporary
office similar to WSPF.

Congress has the power to enact a statute requiring the President
or Attorney General to appoint such a prosecutor, with appropriate
safeguards of his jurisdiction and independence, and two-thirds
majorities of both Houses have the power to override a Presidential
veto of such legislation if necessary. In addition, the nature of the
relationship between Congress and the executive branch provides
other means of compelling such an appointment. WSPF was created
because the Senate insisted on such action as a condition of confirming
the nomination of an Attorney General. Congress can similarly use
its power to appropriate funds and the Senate can use its confirmation
power to force such action if necessary. The remedy of impeachment
remains available as a last resort.

Attorney Representation of Multiple Interests in Grand Jury Pro-
ceedings . In almost every investigation which centers on the criminal
activity of one or more members of a hierarchical structure — whether
a corporation, labor union, a Government agency, or a less formally
organized group — the prosecutor is confronted with a witness who
has been called to testify about his employers. Many times, the wit-
ness is represented by an attorney who also represents the employer
and perhaps is compensated by him. Although the legal profession’s
Code of Professional Responsibility forbids a lawyer from representing
conflicting or even potentially conflicting interests, lawyers and
judges historically have been reluctant to enforce the Code’s mandate
strictly. They have taken the position that, so long as the witness
understands that his attorney also represents the person or entity
about which he will be asked to testify and that he has the right to a
lawyer of his own choosing, he cannot be forced to retain new counsel.

No lay witness, however, can realistically be expected to appreciate
all the legal and practical ramifications of his attorney’s dual loyalties,
and in many cases he will be precluded from giving adequate consid-
eration to the possibility of cooperating with the Government by the
fear that the fact of his cooperation will be revealed to his employer.
A mere inquiry by the judge in open court concerning the witness’
preference is not likely to elicit a truthful response. It is necessary,
therefore, for the court to intervene more directly by making a factual
determination as to the existence of the conflict of interest and then
requiring the witness to retain, or appointing for him, counsel who has
no such conflict. Although there will obviously be great reluctance to

140

interfere with the individual's freedom to select his own attorney, the
suggested course is the only one that can preserve the equally valid
right of the Government to his full and truthful testimony.

Both the courts and the various bar groups should be alerted to
the serious issues of professional responsibility arising out of the re-
presentation of multiple interests during grand jury investigations, 2
and Government counsel should press on every justifiable occasion for
a judicial ruling on the question of conflict of interest and, where a
conflict is found, for the replacement of the attorney involved.

Clarification of the Status under the Freedom of Information Act of
Information Obtained in Confidence by Criminal Investigators . Under
the Freedom of Information Act as amended in 1974, a prosecutor’s
investigative files are exempt from disclosure, but only to the extent
that production would :

(A) interfere with enforcement proceedings, .

(B) deprive a person of a right to a fair trial or an impartial
adjudication,

(C) constitute an unwarranted invasion of personal privacy,

(D) disclose the identity of a confidential source and, in the
case of a record compiled by a criminal law enforcement authority
in the course of a criminal investigation, or by an agency conduct-
ing a lawful national security intelligence investigation, confiden-
tial information furnished only by the confidential source,

(E) disclose investigative techniques and procedures, or

(F) endanger the life or physical safety of law enforcement
personnel.

Much of the information received by WSPF was received either
upon an express assurance of confidentiality or upon a reasonable
understanding that the information would not be disclosed except as
necessary in court proceedings. In some cases, disclosure of such infor-
mation would not interfere with ongoing investigations or prosecu-
tions, or constitute an unwarranted invasion of anyone’s privacy.
The question then arises whether the disclosures of such information,
even if the source has been identified publicly, would “interfere with
enforcement proceedings” and hence be protected from disclosure.

The statute can and should be interpreted to protect the con-
fidentiality of such information. Successful investigation and prosecu-
tion, particularly in the areas of official corruption and “white-collar”
crime, often depend heavily on the voluntary cooperation of the
subjects of the investigation or their close associates. This cooperation
would diminish substantially if information from such sources was
subject to ready disclosure under the Freedom of Information Act
after the inquiry was closed.

2 A committee of the American Bar Association is studying the general ques-
tion of multiple representation in criminal proceedings and should extend its
inquiry to cover the grand jury stage as well.

141

In this sense, public disclosure would interfere with law enforce-
ment proceedings and the information would be protected under the
current language of the statute. However, the language is sufficiently
ambiguous that its interpretation could involve litigation that would
extend for several years. The very existence of such litigation, putting
in doubt the validity of prosecutors’ assurances to sources of informa-
tion, might deter many persons from cooperating with Federal law
enforcement authorities. The statute’s language suggests that Con-
gress weighed the value of such cooperation against the value of dis-
closure and concluded that the former should receive greater weight.
The statute should be amended to make clear that information
furnished on a confidential basis to a Federal law enforcement agency
is protected from disclosure.

Protecting the Integrity of

Executive Branch Functions in Law Enforcement

Some of the actual abuses of “Watergate”, and many attempted
abuses, can be traced to pressures upon agencies with law-enforcement
functions by requests or directives from White House staff members
whose purpose was to serve the President’s political interest. Execu-
tive branch agencies with these kinds of responsibilities, such as the
Secret Service, the Federal Bureau of Investigation and the Internal
Revenue Service, should respond to Presidential direction in broad
policy areas and should be generally accountable to the President for
the performance of their functions. But their responsiveness should
not be such as to make them part of the President’s political apparatus,
particularly since their powers and duties involve basic rights of
citizens.

Independence of Agency Heads and Staff. The persons appointed
by the President and confirmed by the Senate to head such agencies as
the FBI, IRS and the Secret Service should, like the Attorney General,
be highly qualified individuals, with independent reputations, who
had not taken leading roles in the President’s political campaigns.
They should be capable of making independent judgments and
authorized to appoint similarly qualified subordinates. In exercising
their power to advise and consent to Presidential nominations of such
officials, Senators should stress the sensitivity of the respective
agencies’ functions and the danger of their over-responsiveness to
political concerns.

Congressional Oversight. The oversight powers and responsibilities
of Congress can provide an effective restraint on possible misuse of
such sensitive agencies. Congress should exercise effective policy
oversight in areas subject to abuse, such as law enforcement and in-
telligence functions. Recent disclosures about some of the activities
of the CIA, FBI, and IRS suggest that such oversight has been seri-

*42

ously deficient in the past. Oversight should include regular review of
agency policies, the nature of priority programs, allocations of re-
sources, intelligence programs, internal inspection procedures, com-
pliance with audit requirements, and similar indications of the manner
in which such agencies are performing their sensitive functions. The
oversight function can and should include, without the need for new
laws, a regular monitoring of the nature and frequency of White
House action directives about individuals subject to possible scrutiny
by the enforcement agencies. Policy oversight, however, should not
be allowed to become Congressional intervention in particular matters,
such as criminal and tax investigations, in which the agencies are
engaged; over-responsiveness to the personal or political interests of
Members of Congress is no less evil than over-responsiveness to the
White House.

Liability oj an Incumbent President to Criminal Prosecution . One
of the most difficult legal and policy questions WSPF faced was
whether to seek an indictment of President Nixon along with the in-
dictment of several of his former aides in connection with the Water-
gate cover-up conspiracy. After careful deliberation, Special Prosecutor
Jaworski concluded that an indictment of President Nixon for such
crimes would not be upheld by the Supreme Court, and that the
litigation leading to such an adverse decision would be prolonged and
might complicate the impeachment inquiry then underway in the
House of Representatives. Because of these conclusions and because
the evidence regarding President Nixon was clearly relevant to the
House inquiry, the Special Prosecutor chose to ask the grand jury to
transmit an evidentiary report to the Committee considering the
President’s impeachment.

The Special Prosecutor’s conclusion about the President’s in-
dictability was not easily reached, and the legal standard needs
clarification. Should such a question arise in the future, it would be
helpful to know with more certainty whether the Constitution permits
the indictment of an incumbent President, and if so, for what kinds of
crimes, and what relationship such a prosecution has to the exercise
of Congress’ impeachment power. The worst time to answer such
questions is when they arise; perhaps the best time is the present,
while the memory of relevant events is fresh. Congress should consider
these issues and clarify them by constitutional amendment.

Control of the Intelligence and National Security Functions

The executive branch of government exercises its greatest enforce-
ment powers when its agents identify persons or groups as a threat to
internal order or to the Nation’s security. Acting without court
approval, law enforcement agencies can gather, store and use large
amounts of information about these persons and groups. These activi-

143

ties have been scrutinized, and are under scrutiny, by many orga-
nizations— the Rockefeller Commission on CIA Activities, the Senate
and House Select Committees on Intelligence and subcommittees of
the House and Senate Judiciary Committees. Since many of these
activities spanned two decades and others did not involve Presidential
appointees or White House staff members, WSPF investigations
covered only part of these prior federal enforcement efforts. The
recommendations of the inquiry groups mentioned above should be
given immediate consideration by the executive and legislative
branches. The following two suggestions arose from WSPF’s work.

Policies Regarding the Intelligence Function. Much of what goes
awry in intelligence functions can be laid to secret, subjective judg-
ments about the establishment of priorities for intelligence-gathering,
the selection of the kinds of information to be gathered, a failure to
analyze gathered information adequately and the stubborn failure
to reappraise decisions over time. The intelligence function should
be subject to the same policy procedures as any other important
government enterprise.

Therefore, each agency with significant intelligence-gathering
responsibilities, including the CIA, FBI, and IRS, should formulate
written policies that include the purposes for which intelligence is to
be gathered, the methods to be used in obtaining information, the
kinds of information to be sought, and provisions for periodic review
of priorities and purging of records that no longer serve an important
or legitimate purpose.

These policy statements should be submitted to a Presidentially-
appointed domestic intelligence policy review board that includes
agency heads and representatives of the public. The board would
hear the justifications for each policy and have the authority to make
public recommendations.

The general policy statements of each agency should be made
public. This can be accomplished without any threat to the effec-
tiveness of the intelligence function and can serve as guides for press
and citizen scrutiny of agency operations.

u National Security ” Exception to the Warrant Requirement for
Searches and Seizures. In United States v. Ehrlichman , which charged
that the entry into the office of Daniel Ellsberg’s psychiatrist by the
White House “Plumbers” constituted a violation of the Fourth
Amendment, the Special Prosecutor maintained both in the District
Court and in the Court of Appeals that interests of “national secur-
ity” cannot justify the lack of a judicially-authorized search warrant
to enter a citizen’s home or office, in order to seize or copy documents.
Although the Special Prosecutor acknowledged that Attorneys
General in the past in foreign intelligence cases had authorized war-
rantless physical trespasses to place electronic eavesdropping devices,
he argued that no Attorney General and no President had claimed

144

the constititional power to authorize or, in fact had authorized war-
rantless entries to seize documents from citizens. To WSPF's knowl-
edge, that remains a fact.

In the Court of Appeals, however, the Department of Justice filed
a brief stating the Department's view on “the legality of forms of
surveillance in the United States without a warrant in cases involving
foreign espionage or intelligence.” The brief continued:

It is the position of the Department of Justice that such activ-
ities must be very carefully controlled. There must be solid reason
to believe that foreign espionage or intelligence is involved. In
addition, the intrusion into any zone of expected privacy must be
kept to the minimum and there must be personal authorization by
the President or the Attorney General. The United States be-
lieves that activities so controlled are lawful under the Fourth
Amendment.

In regard to warrantless searches related to foreign espionage
or intelligence, the Department does not believe there is a con-
stitutional difference between searches conducted by wiretapping
and those involving physical entries into private premises. One
form of search is no less serious than another. It is and has long
been the Department's view that warrantless searches involving
physical entries into private premises are justified under the
proper circumstances when related to foreign espionage or intelli-
gence ...”

The Department's long-held “view” is based solely on policies
and authorized practices with regard to electronic surveillance and
is not based on any historical record involving authorized physical
break-ins to seize tangible items. Moreover, in dealing with the
Department on this matter, WSPF found that the historical record
even with respect to electronic surveillance is not entirely clear.
Attorneys General over the years have not always taken positions
consistent with those of their predecessors, and there is no centralized,
complete record of prior practices and policies.

This is obviously a matter of great public importance, affecting
not only basic constitutional rights but also the national security.
Although ultimately the courts must answer the constitutional
question — what power if any the President and his chief legal officer
(the Attorney General) have to authorize warrantless searches and
seizures in the name of national security — the current policy of the
executive should be subject to thorough Congressional and public
scrutiny. Accordingly, it is recommended :

(a) Past memoranda setting forth the policy positions of the
Presidents and Attorneys General should be disclosed publicly, and

(b) The Administration should promulgate publicly its current
policy, stating the precise power claimed by the President and setting
forth in as great detail as possible the factors and standards that now
govern the President's and Attorney General's exercise of discretion
in authorizing warrantless foreign intelligence searches and seizures.

M5

Political Financing and Campaign Tactics

Campaign Financing and Reporting. WSPF’s experience in at-
tempting to enforce the campaign financing and reporting laws,
some newly enacted and others on the books for many years, suggests
that continuing enforcement efforts can be improved and that such
efforts would be aided by certain changes in the statutory require-
ments and prohibitions.

1, Proactive Enforcement Policy. In many of WSPF’s election law
investigations and prosecutions, defense counsel contended that there
had been a long history of non-enforcement of the applicable criminal
statutes, and that the Special Prosecutor’s office should take that
history into account by deciding either that no charges should be
brought or that some mitigation of proposed charges would be appro-
priate. This argument had its greatest force with respect to the regis-
tration and reporting provisions of the universally criticized Federal
Corrupt Practices Act, which has been repealed. Only one reported
prosecution had ever been brought, in 1934/ and the Justice Depart-
ment had long followed a policy, enunciated by Attorney General
Herbert Brownell in 1954, of not initiating investigations except upon
referral by the Clerk of the House of Representatives or the Secretary
of the Senate, the officials to whom reports were required to be made.
Such referrals rarely occurred. With respect to the prohibition against
contributions by Government contractors (18 U.S.C. § 611), no re-
ported prosecutions had ever been brought. In the case of the prohibi-
tion against corporate or labor union contributions (18 U.S.C. § 610)
the record was somewhat better: a number of unions and union
officials had been prosecuted, and some corporations had also been
charged, but generally the individual corporate officers responsible
for the making of illegal contributions had not been charged.

It is important to the integrity of both law enforcement and the
electoral process that this history not be repeated. The Department of
Justice should use the resources and make the effort necessary to
monitor actively areas of possible abuse and begin investigations
without waiting for formal referrals or complaints. The Department
should announce its intent to pursue an aggressive policy of enforce-
ment of the election laws. To give further notice of such an enforcement
policy, individual notices should be mailed to candidates for federal
office, political committees and their officers, and corporations, labor
unions, and their officers.

As a result of the 1974 amendments to the Federal Election Cam-
paign Act, the Federal Elections Commission has a clear responsibility
to monitor and investigate campaign violations and make civil dis-
positions or refer criminal matters to the Department of Justice for
possible prosecution. The Commission presumably will discharge its

3 U.S. v. Burroughs , 209 U.S. 534.

14$

duties responsibly and effectively, but the existence of the Commission
should not inhibit the development and promulgation of new Justice
Department enforcement policies, particularly in view of the ongoing
legal challenges to the Commission’s own enforcement powers.
Vigorous enforcement efforts by the Justice Department would have
a marked deterrent effect on would-be violators of the election laws.
2. Federal Election Campaign Act (FECA)

a. Reporting responsibility of the chairman of a political committee
under 2 U.S.C. § JSJ(a). This statute places sole responsibility for
filing reports of campaign receipts and expenditures on the treasurer
of a political committee. This approach tends to focus the law’s
requirements on a campaign official who often is not an important
figure in the committee hierarchy but merely acts as the chairman’s
agent. A committee chairman can therefore attempt to avoid respon-
sibility for his committee’s reporting violations by claiming that the
statute imposes no reporting duty on him. While the “aiding ancl
abetting” provisions of federal criminal law can be used under some
circumstances to hold a chairman liable for such violations, the
treasurer-centered language of § 434(a) permits the raising of a false
issue which can mislead a court or jury. The statute should be amended
to place equal reporting responsibility on the chairman and treasurer
of a political committee.

b. Penalty provisions of 2 U.S.C. § This section, establishing
penalties for FECA violations, appears to pose an ambiguity. It
reads as follows:

§ 441. Penalties for violations

(a) Any person who violates any of the provisions of this
chapter shall be fined not more than $1,000 or imprisoned not
more than one year, or both.

(b) In case of any conviction under this chapter, where the
punishment inflicted does not include imprisonment, such con-
viction shall be deemed a misdemeanor conviction only.

This language raised problems in . two cases brought by WSPF in
which defendants entered guilty pleas to misdemeanor FECA viola-
tions and then argued that Section (b) of the statute would not permit
the judge to sentence them to imprisonment. WSPF argued that the
statute permits a prison sentence for a misdemeanor and does not
create any felony designation. In neither case did the sentencing
judge accept the defense contention. However, the statute should
be amended to clarify Congress’ intent, and it is recommended that
§ 441(b) be eliminated as superfluous.

c. Statute of limitations: 2 U.S.C. § JJJ(a). The FECA was
amended in 1974 to require that any prosecution for violations of its
provisions, and certain other criminal statutes dealing with campaign
financing, be commenced within 3 years of the violation. Before the
amendment, under both the FECA and its predecessor the Federal

147

Corrupt Practices Act, the period of limitation had been 5 years, as
it is for almost all Federal crimes. It is often difficult, in dealing with
“white-collar” crime generally, to uncover violations and bring
violators to indictment even within the normal 5-year period. The
difficulty increases when campaign-law violators, including both
givers and receivers of contributions, make efforts to conceal the
illegal nature of their activities, as many did in the 1972 campaigns.
Under such circumstances, with a 3-year statute of limitations, the
chances are excellent that many violations will be barred from prosecu-
tion by the time they are discovered. Another advantage of a 5-year
limitation period is that it permits a new Administration to prosecute
violations that might have occurred at any time during the previous
Presidents last term of office, making it impossible for the previous
Administration to cover up its election violations and bar pursuit of
those crimes by a new Administration circumscribed by the short,
3-year limitations. No convincing reasons have been advanced for
granting this special privilege to Federal candidates, and the stat-
ute should be amended to readopt the 5-year period now applicable
to all other persons in the criminal code.

d . Intent-centered definitions in 2 U.S.C. § 481{e) and (/). The Act
requires the reporting of “contributions” and “expenditures” by
political committees; these subsections define those terms for re-
porting purposes as contributions or expenditures made “for the
purpose of . . . influencing” nominations, primaries, or general
elections. This definition seems unnecessarily narrow, permitting
campaign officials to contend that contributions received or ex-
penditures made after an election has taken place need not be re-
ported because they could not have been made with the requisite
intent to influence the election. Similarly, it has been argued that the
campaign-fund expenditures that resulted in “hush-money” payments
to the Watergate defendants in 1972 were not reportable because they
were not made for the purpose of influencing the election. If the policy
behind the Act is to promote disclosure of the financial dealings of
political campaign committees, the “definitions” section should be
amended to require that committees report all financial transactions
in which they engage (subject to the existing minimum dollar
amounts), regardless of the purpose of the transaction or whether it
occurred before or after an election.

3. Solicitation and Receipt of Contributions in Federal Buildings
{18 U.S.C. § 603). During the course of its investigations, the Cam-
paign Contributions Task Force learned of instances where members
of Congress or other Federal employees accepted voluntary campaign
contributions from private citizens in Federal Office buildings. This
practice appears on its face to be prohibited by this felony statute,
which, in essence, prohibits any person from soliciting or receiving a
contribution in any Federal building. The statute’s legislative history,

148

however, indicates that it was intended to protect Federal civil
service employees from coercion and thus prohibit the solicitation or
receipt of contributions only from such employees. An}^ other inter-
pretation of the statute would give felony status to any person who
merely received campaign funds from any other person in a Federal
building, even though the funds were unsolicited and neither person
was a Government employee, when the identical conduct if performed
a short distance away, i.e., on the sidewalk outside the building, would
involve no criminal act at all.

On the basis of that legislative history, the Watergate Special
Prosecution Force declined to prosecute in those cases. Some might
argue that the solicitation or receipt of political contributions in
Federal buildings from non-Federal employees by elected Federal
officials should be permitted, but there are strong policy considera-
tions which would support a prohibition against such action by ap-
pointed Federal officials, such as cabinet officers or other executive
branch officials.

Because of this conflict between the plain meaning of the present
statute and the legislative history of this Act, the statute should be
amended to state whether it does or does not apply only to contribu-
tions to and from Federal employees, and to clarify the question of
its applicability to elected as well as appointed officials.

4. Contributions of Corporate or Union Funds Under 18 U.S.C. § 610 1

a. Designation of corporate violations as felony or misdemeanor .
The amended statute imposes a fine of $25,000 for each violation by a
corporation or labor union, but does not specify whether such a viola-
tion is a felony or misdemeanor. This omission sometimes leads to
confusion when a corporation or union pleads guilty to an information
alleging a violation of § 610, and an individual is charged under 18
U.S.C. § 2 with causing, aiding, or abetting the violation. The absence
of a penalty of imprisonment for such conduct suggests that it is a
misdemeanor, but the size of the maximum fine is reserved for the
felony classification defined elsewhere in the Federal criminal statutes.
Section 610 should be amended to designate a violation by a corpora-
tion or union as either a felony or a misdemeanor.

b. Definition of the term “ officer .” The section prohibits an officer
of a corporation or union from consenting to a contribution of cor-
porate or union funds, but does not define the term “officer.” WSPF
has taken the position, and a trial court has agreed in one case, that
the term applies to anyone who performs the managerial functions
that an officer ordinarily would perform, regardless of title. But the
lack of a definition permits defendants in certain cases to argue that
the term applies only to individuals holding a position specifically
entitled “officer” in the corporate charter or by-laws, or the laws of
the State of incorporation. A definition of “officer” should be added

149

to Section 610 to include all corporate or union employees who per-
form the functions of an officer.

c. Definition of “ willful ” consent The section prohibits corporate
or union officers, and campaign officials who receive contributions,
from consenting to contributions of corporate or union funds, and
distinguishes between the misdemeanor of “consent” and the felony
of “willful consent.” WSPF has taken the position that “willful
consent” by a donor requires only the knowledge of the operative
facts and action taken with that knowledge which results in the making
of an illegal contribution, rather than the affirmative knowledge
that the contribution is illegal. But that position has not been fully
tested in litigation and leaves open the question of what is a “non-
willful” violation — i.e., what defenses of good faith or reliance on
advice of counsel will reduce the violation from a felony to a misde-
meanor. A related question is whether the language penalizing “non-
willful” violations imposes a standard of strict liability, making a
corporate or union officer liable for consenting to a contribution even
if he had no knowledge of its corporate or union source. Similarly,
in prosecuting recipients WSPF has taken the position that a “willful”
violation requires actual knowledge of a contribution’s corporate or
union source, while a “non-willful” violation is established by reckless
disregard of the possibility that a contribution comes from such a
source. But it is possible to interpret the statute as one imposing
strict liability on recipients as well as donors.

A collateral question is whether there can be a conspiracy to
commit a “non-willful” § 610 violation. While one court in a case
unrelated to WSPF’s work has held that such a conspiracy can be
charged, the basis for this finding is unclear in § 610.

Section 610 should be amended to claify the definitions of “willful”
and “non-willful” conduct, preferably as WSPF has interpreted the
terms, and to make clear whether a “non-willful” violation can be
the object of a conspiracy.

5. Contributions by Government Contractors Under 18 U.S.C. § 611

a. Nature of requisite contractual relationship. The statute prohibits
the giving of a campaign contribution by anyone who has entered
into a contract with the United States “either for the rendition of
personal services or furnishing any material, supplies, or equipment
to the United States ... or for selling any land or building to the
United States . . .,” if the contract payment includes funds appro-
priated by Congress. This language leaves open the question whether
a person or firm leasing property to the government is a contractor
within the statute’s meaning. Based on the section’s legislative his-
tory, the Department of Justice has taken the position, to which
WSPF has adhered, that such a person or firm is not a contractor
under the section. However, that position seems inconsistent with
the statute’s general purpose of preventing improper influence on

150

decisions about spending government funds. The section should be
amended to cover lessors of property along with other contractors.

b. Liability of individual 'partners in partnerships . Section 611
applies to corporations, partnerships, and individuals — anyone
holding a contract with the government. Because a corporation is
a separate entity from the individuals who own its stock, the Depart-
ment of Justice and WSPF have taken the position that shareholders
of corporations holding government contracts may make contributions
of funds they receive from corporate dividends without being in
violation of § 611. Under the provisions of § 610, officers and employees
of such a corporation also may contribute personal funds, including
those derived from corporate dividends, to a political fund established
to make campaign contributions with corporate identity. However,
because a partnership is not an entity separate from its individual
partners, the Justice Department has taken the position that partners
may not make personal contributions if their partnership holds a
government contract. This leads to the anomalous situation in which
corporate shareholders and employees may contribute personal funds
either individually or jointly with corporate identity without being in
violation of § 611, but members of a partnership which holds a govern-
ment contract are prohibited from giving similar support to the can-
didates of their choice. The statute should be amended to place
partners and corporate officers and shareholders of firms holding
government contracts on the same footing.

c. General scope of § 611 . The evident purpose of this section is to
prohibit the possible use of campaign contributions as a means of
influencing Government actions that affect potential contributors. But
its coverage is limited to potential donors having a contractual rela-
tionship with the Government. Other donors that do not necessarily
hold any Government contracts might have an equally if not more
compelling interest in influencing Government action — for example,
airlines which depend on Government decisions about routes or oil
companies depending on Government decisions about import quotas.
At the same time, § 611 is broad enough to include any person or firm
having any contractual relationship with the Government, no matter
how small or insignificant that contract may be in the person’s or
firm’s overall business. In enforcing §611, WSPF exercised its dis-
cretion to limit prosecutions under the statute to firms whose contracts
with the Government provided at least 20 percent of their gross
receipts for the year in question, and it would seem reasonable to
amend the statute to narrow its coverage along those lines. At the
same time, the statute should be redrafted to cover contributions by
persons or firms whose possible interest in improperly influencing
Government action is based on either contracts with the Government
or other relationships, such as the regulated character of the person’s
or firm’s business.

151

Such an amendment might also involve reduction of the disparity
of penalties under both § 610 and § 611. As the law now stands, an
officer of a corporation with a substantial interest in Government reg-
ulatory action, but with no contractual relationship, can be sentenced
to two years' imprisonment if he willfully consents to a contribution
of corporate funds, while an individual holding a small contract with
the Government can be sentenced to five years' imprisonment for
making a personal contribution to any federal candidate. It might be
appropriate to reduce the maximum penalty under § 611, while
broadening the statute's subject-matter coverage. A contribution
made for the purpose of influencing a Government action is already
subject to a bribery charge.

Questionable Campaign Practices . In addition to its inquiries into
possible violations of campaign financing and reporting laws, WSPF
investigated allegations of other campaign activities generally known
as “dirty tricks." Many of these activities seemed clearly at odds
with prevailing standards of acceptable campaign conduct, but did
not appear to be covered by existing federal criminal statutes. 4 As a
result, the Senate Select Committee recommended legislation to pro-
hibit the following activities during political campaigns:

(1) obtaining or causing another to obtain employment in a
campaign by false pretenses in order to spy on or obstruct the
campaign;

(2) requesting or knowingly disbursing campaign funds for the
purpose of promoting or financing violations of election laws :

(3) stealing, taking by false pretenses, or copying without authori-
zation campaign documents which are not available for public
dissemination;

(4) fradulently misrepresenting oneself as representing a candidate
(applying to any person, not just candidates and their agents as in
§617).

In addition, legislation has been introduced to prohibit any
payment to another person for actions that violate any election law
(covering payments of campaign funds and funds from other sources),
and to make any violation of State or Federal law a separate Federal
offense if committed for the purpose of interfering with or affecting
the outcome of a Federal election.

These proposals, designed to eliminate practices which are clearly
disruptive of the political process, raise serious questions about the
proper role of the criminal justice system in policing day-to-day
campaign activities. There are stronger reasons for legislating against

4 The Federal criminal code (18U.S.C. §§612, 617) prohibits publication or
distribution of campaign literature without a designation of its true source, as
well as misrepresentation by a candidate or his agent that he is acting on behalf
of another candidate or campaign.

152

corrupt campaign financing practices than for using criminal sanctions
to enforce standards of behavior during the heat of a political cam-
paign. In the former instance, corruption is likely to influence not only
the outcome of the campaign but also decisions of elected officials on
matters of interest to their contributors; by contrast, “dirty tricks”
perpetrated during a campaign have, at most, only a temporary
effect, if any.

Several other considerations complicate the question of whether to
outlaw “dirty tricks” not encompassed by existing legislation. First,
the criminal justice system is not a desirable watch-dog over the
daily operations of political campaigns. Proper enforcement efforts
would produce a tremendous drain on law enforcement resources and
could inhibit the legitimate activities of candiates and their supporters,
as well as create dangers of prosecutorial misconduct . 5 In addition,
many “dirty tricks” are exposed during the course of a political
campaign, to the detriment of the candidate on whose behalf they are
conducted. The experience of WSPF also suggests that most cam-
paign “pranksters” are persons who, because of their youthful in-
experience, fail to appreciate the nature of their conduct. Finally,
there is the problem of defining prohibited conduct in this area so as
to give adequate notice to potential offenders, while at the same time
avoiding infringement on the First Amendment rights of candidates
and their supporters.

All these considerations suggest the wisdom of keeping criminal
prohibitions to a minimum. Both the Constitution and the nation’s
experience as a democracy suggest that broad criminal restraints on
political activity and expression are unnecessary and unwise. Even so,
some reforms are desirable. In terms of the criminal law, it might be
advisable to prohibit the copying, stealing or taking by false pretenses
of campaign documents not available to the public . 6

The suggestion that campaign “dirty tricks” be dealt with chiefly
by the political process is based also on the theory that the recently
created Federal Election Commission, if given expanded powers,
would be able to detect and expose improper campaign practices. The
Commission is presently empowered to receive complaints and conduct

5 Since Federal prosecutors are appointed by the President and must be
confirmed by the Senate, the integrity of their decision making processes in this
area might well be questioned as motivated by political considerations or pressure
on the part of those who supported their appointment.

6 Since such documents usually have no intrinsic monetary value, they are
not protected by state laws relating to theft; rather, they are akin to documents
containing proprietary information or “trade secrets” which are protected under
the laws of some states. In considering the advisability of such legislation, how-
ever, Congress should careful^ weigh its First Amendment implications, including
its possible effect on persons who disclose documents revealing matters of legiti-
mate concern to voters, such as a candidate’s improper actions or inconsistencies
between his private views and public statements.

153

investigations of alleged violations of § 617, as well as transgressions of
campaign financing laws. The Commission's authority should be
broadened to include investigation of violations of § 612 and of any
other legal prohibitions enacted in the future as to campaign tactics.
The Commission should also be empowered to adopt standards of
campaign conduct to define what behavior is not acceptable in political
campaigns, and to enforce such standards through its investigative
powers, its authority to assess civil penalties, and its authority to
issue public reports describing instances or patterns of misconduct in
particular campaigns.

* * * *

One final note, albeit a personal one. One hundred years ago, an
America still recovering from its devastating Civil War wrestled with
the pay-off scandals of the Grant Administration tod approached
its centennial celebration. Historians report that few candidates
reached the United States Senate without financial support from the
“special ’interests” — railroads, oil companies, textile concerns, the
iron and steel industry and mining companies. 7 The Nation had grown
so weary that even the usually optimistic Longfellow wrote:

Ah, woe is me

I hoped to see my country rise to heights
Of happiness and freedom }^et unreached
By other nations, but the climbing wave
Pauses, lets go its hold, and slides again
Back to the common level, with a hoarse
Death-rattle in its throat. I am too old
To hope for better days.

Now again, at the Bicentennial, the Nation has grown wear y^
Much contributed to this, but few can deny that uncovering years
of actual and alleged Government abuses has played its part. Institu-
tions once again had to earn the faith of the people in whose names
they acted.

That lesson became clear. When Archibald Cox was fired, Ameri-
cans rose in anger. The telegrams came to us from Middle America —
small cities, towns, and hamlets that only the residents had ever
heard of. The national Government had offended its people's sense
of justice. The citizens wanted to control what would happen, and
they eventually did. When vigilance erupted, institutions responded.
One must believe that unresponsive power, both public and private,
can never overcome that will.

7 The historical observations are taken from Samuel Eliot Morison, The
Oxford History of the American People. 731-3 (Oxford University Press 1965).

154

Appendix A:

Status Report of
Cases

WATERGATE SPECIAL PROSECUTION FORCE
CRIMINAL ACTIONS

The following matters group by category all WSPF cases and
appeals from May 29, 1973 to September 1, 1975:

Watergate Cover-up

The following have been charged with offenses stemming from
events following the break-in at Democratic National Committee
Headquarters on June 17, 1972 :

Charles W. Colson

Indicted on March 1 , 1974, on one count of conspiracy to obstruct
justice (18 USC Section 371) and one count of obstruction of jus-
tice (18 USC Section 1503). Pleaded not guilty March 9, 1974.
Indictment dismissed by government June 3, 1974, after guilty plea
in U.S . v. Ehrlichman et al.

John W. Dean III

Pleaded guilty on October 19, 1973, to an information charging
one count of violation of 18 USC Section 371, conspiracy to ob-
struct justice. Sentenced August 2, 1974, to a prison term of one to
four years. Began term September 3, 1974. Released January 8,
1975, pursuant to order reducing sentence to time served.

John D. Ehrlichman

Indicted on March 1, 1974, on one count of conspiracy to obstruct
justice (18 USC Section 371), one count of obstruction of justice
(18 USC Section 1503), one count of making false statements to
agents of the FBI (18 USC Section 1001) and two counts of
making a false statement to a Grand Jury (18 USC Section 1623).
Pleaded not guilty March 9, 1974. Section 1001 count dismissed by
judge. Found guilty on all other counts January 1, 1975. Sentenced
February 21, 1975 to serve 2% to 8 years in prison. Conviction
under appeal.

Harry R. Haldeman

Indicted on March 1, 1974, on one count of conspiracy to obstruct
justice (18 USC Section 371), one count of obstruction of justice
(18 USC Section 1503) and three counts of perjury (18 USC Sec-

155

tion 1621). Pleaded not guilty March 9, 1974. Found guilty on all
counts January 1, 1975. Sentenced February 21, 1975, to serve
2}i to 8 years in prison. Conviction under appeal.

Fred C. LaRue

Pleaded guilty. on June 28, 1973, to an information charging one
count of violation of 18 USC Section 371, conspiracy to obstruct
justice. Sentenced to serve one to three years in prison, all but
six months suspended. Sentence reduced by court to six months
total. Entered prison April 1, 1975. Released August 15, 1975.

Jeb S. Magruder

Pleaded guilty on August 16, 1973, to an information charging
one count of violation of 18 USC Section 371, conspiracy to unlaw-
fully intercept wire and oral communications, to obstruct justice
and to. defraud the United States. Sentenced on May 21, 1974,
to a prison term of 10 months to four years. Began term June 4,
1974. Released January 8, 1975, pursuant to order reducing sen-
tence to time served.

Robert Mardian

Indicted on March 1, 1974, on one count of conspiracy to obstruct
justice (18 USC Section 371). Pleaded not guilty March 9, 1974.
Found guilty January 1, 1975. Sentenced February 21, 1975 to
serve 10 months to three years in prison. Conviction under appeal.

John Mitchell

Indicted on March 1, 1974, on one count of conspiracy to obstruct
justice (18 USC Section 371), one count of obstruction of justice
(18 USC Section 1503), two counts of making a false statement to
a Grand Jury (18 USC Section 1623), one count of perjury (18 USC
Section 1621), and one count of making a false statement to an
agent of the FBI (18 USC Section 1001). Section 1001 count was
dismissed by judge. Pleaded not guilty March 9, 1974. Found
guilty on all other counts January 1, 1975. Sentenced February 21,
1975 to serve 2% to 8 years in prison. Conviction under appeal.

Kenneth W. Parkinson

Indicted on March 1, 1974, on one count of conspiracy to obstruct
justice (18 USC Section 371) and one count of obstruction of
justice (18 USC Section 1503). Pleaded not guilty March 9, 1974.
Acquitted January 1, 1975.

Herbert L. Porter

Pleaded guilty on January 28, 1974, to an information charging a
one-count violation of 18 USC Section 1001, making false state-
ments to agents of the FBI. Information had been filed January 21,
1974. Sentenced on April 11, 1974, to a minimum of five months
and maximum of 15 months in prison, all but 30 days suspended.
Served April 22 to May 17, 1974.

Gordon Strachan

Indicted on March 1, 1974, on one count of conspiracy to obstruct
justice (18 USC Section 371), one count of obstruction of justice
(18 USC Section 1503), and one count of making a false statement
to a Grand Jury (18 USC Section 1623). Pleaded not guilty
March 9, 1974. Case severed September 30, 1974. Charges dis-
missed on motion of Special Prosecutor March 10, 1975.

156

Fielding Break-in

The following have been charged with offenses stemming from the
September 3-4, 1971, break-in at the Los Angeles office of Dr. Lewis
Fielding.

Bernard L. Barker

Indicted on March 7, 1974, on one count of conspiracy to violate
civil rights (18 USC Section 241). Pleaded not guilty March 14,
1974. Found guilty July 12, 1974. Suspended sentence. Three
years probation. Conviction under appeal.

Charles W. Colson

Indicted on March 7, 1974, on one count of conspiracy to violate
civil rights (18 USC Section 241). Indictment dismissed after
Colson pleaded guilty on June 3, 1974, to an information charging
one count of obstruction of justice (18 USC Section 1503). Sen-
tenced June 21, 1974 to serve one to three years in prison and fined
$5,000. Term started July 8, 1974. Released January 31, 1975,
pursuant to order reducing sentence to time served.

Felipe De Diego

Indicted on March 7, 1974, on one count of conspiracy to violate
civil rights (18 USC Section 241). Pleaded not guilty March 14,
1974. Indictment dismissed by judge on May 22, 1974. U.S. Court
of Appeals overturned dismissal on April 16, 1975. Charges dis-
missed on motion of Special Prosecutor May 19, 1975.

John D. Ehrlichman

Indicted on March 7, 1974, on one count of conspiracy to violate
civil rights (18 USC Section 241), one count of making a false
statement to agents of the FBI (18 USC Section 1001), and three
counts of making a false statement to a Grand Jury (18 USC
Section 1623). Pleaded not guilty on March 9, 1974. On July 12,
1974, Ehrlichman was found guilty on all charges, except one of
the counts of making a false statement to a Grand Jury. On
July 22, Judge Gerhard Gesell entered an acquittal on the Section
1001 charge. On July 31, 1974, he was sentenced to concurrent
prison terms of 20 months to five years. Conviction under appeal.
Egil Krogh, Jr.

Indicted on October 11, 1973, on two counts of violation of 18 USC
Section 1623, making a false statement to a Grand Jury. Pleaded
not guilty October 18, 1973. Indictment dismissed January 24,
1974, after Krogh pleaded guilty on November 30, 1973, to an
information charging one count of violation of 18 USC Section 241,
conspiracy to violate civil rights. Sentenced on January 24, 1974,
to a prison term of two to six years, all but six months suspended.
Began sentence February 4, 1974. Released June 21, 1974.

G. Gordon Liddy

Indicted on March 7, 1974, on one count of conspiracy to violate
civil rights (18 USC Section 241). Pleaded not guilty March 14,
1974. Found guilty July 12, 1974. Sentenced July 31, 1974, to a
prison term of one to three years, sentence to run concurrently
with sentence in U.S. v. Liddy et al. Released on bail October 15,
1974, pending appeal, after serving twenty-one months. Bail
revoked January 13, 1975. (See U.S. v. Liddy et al. p. 163 and
164). Conviction under appeal.

1S7

591-439 0 - 75-11

Eugenio Martinez

Indicted on March 7 , 1974, on one count of conspiracy to violate
civil rights (18 USC Section 241). Pleaded not guilty March 14,
1974. Found guilty July 12, 1974. Received a suspended sentence
and three years probation on July 31, 1974. Conviction under
appeal.

Campaign Activities and Related Matters

The following individuals entered pleas of guilty to misdemeanor
non-willful violations of 18 USC Section 610, the federal statute pro-
hibiting corporate campaign contributions:

Raymond Abendroth

Time Oil Corp.

James Allen

Northrop Corp.

Richard L. Allison

Lehigh Valley Co-opera-
tive Farmers

Orin E. Atkins

Ashland Petroleum
Gabon, Inc.

Russell DeYoung

Goodyear Tire and Rub-
ber Co.

Ray Dubrowin

Diamond International
Corp.

Harry Heltzer

Minnesota Mining and
Manufacturing Co.

Charles N. Huseman

HMS Electric Corp.

William W. Keeler

Phillips Petroleum Co.

Harding L. Lawrence

Braniff Airways

William Lyles, Sr

LBC&W, Inc.

H. Everett Olson

Carnation Co.

Claude C. Wild, Jr

Gulf Oil Corp.

Harry Ratrie

Ratrie, Robbins and

Schweitzer, Inc.

Augustus Robbins, III

Ratrie, Robbins and

Schweitzer, Inc.

October 23, 1974 $2,000 fine 1

May 1, 1974 $1,000 fine

May 17, 1974 $1,000 fine 2

November 13, 1973 $1,000 fine 3

October 17, 1973 $1,000 fine

March 7, 1974 $1,000 fine

October 17, 1973 $500 fine

December 3, 1974 1 $1,000 fine

December 4, 1973 $1,000 fine

November 13, 1973 $1,000 fine

September 17, 1974 $2,000 fine 1

December 19, 1973 $1,000 fine

November 13, 1973 $1,000 fine

January 28, 1975 Suspended

sentence

January 28, 1975 Suspended

sentence

1 Charged with two counts.

2 Fine suspended.

3 Pleaded no contest to charges.

158

The following individuals entered pleas of guilty to misdemeanor
non-willful violations of 18 USC Sections 2 and 610, aiding and
abetting an illegal campaign contributions:

Francis X. Carroll May 28, 1974 Suspended

sentence

Norman Sherman August 12, 1974 $500 fine

John Valentine August 12, 1974 $500 fine

The following corporations entered pleas of guilty to violations of
18 U.S.C. Section 610, illegal campaign contributions:

American Airlines

Ashland Oil, Inc

Ashland Petroleum Gabon,
Inc.

Braniff Airways

Carnation Company

Diamond International Corp_
Goodyear Tire and Rubber
Company.

Greyhound Corp

Guff Oil Corp

Lehigh Valley Co-operative
Farmers.

Minnesota Mining and
Manufacturing Co.
National By-Products, Inc__

Phillips Petroleum Co

Time Oil Corp__.

Itatrie, Robbins and
Schweitzer, Inc.

October 17, 1973 $5,000 fine

December 30, 1974 $25,000 fine 4

November 13, 1973 $5,000 fine

November 12, 1973 $5,000 fine

December 19, 1973 $5,000 fine

March 7, 1974 $5,000 fine

October 17, 1973 $5,000 fine

October 8, 1974 $5,000 fine

November 13, 1973 $5,000 fine

May 6, 1974 $5,000 fine

October 17, 1973 $3,000 fine

June 24, 1974 $1,000 fine

December 4, 1973 $5,000 fine

October 23, 1974 $5,000 fine 5

January 28, 1975 $2,500 fine

The following corporations entered pleas of guilty to violations of
18 U.S.C. Section 611, illegal campaign contributions by government
contractor :

LBC & W, Inc September 17, 1974 $5,000 fine

Northrop Corporation May 1, 1974 $5,000 fine

The following individual and corporation entered pleas of not
guilty to an information filed October 19, 1973, charging four counts
of misdemeanor non-willful violation of 18 U.S.C. Section 610,
illegal campaign contribution. Both were acquitted on July 12, 1974,
by a U.S. District Court judge in Minneapolis, Minnesota:

Dwayne O. Andreas

Chairman of the Board, First Interoceanic Corp.

First Interoceanic Corp.

4 Charged with five counts.

5 Charged with two counts.

159

The following related campaign contribution matters were under
the jurisdiction of the Watergate Special Prosecution Force:

American Ship Building Company

Pleaded guilty August 23, 1974, to one count of conspiracy (18
USC Section 371) and one count of violation of 18 USC Section
610, illegal campaign contribution. Fined $20,000. Charges were
filed April 5, 1974.

Associated Milk Producers, Inc.

Pleaded guilty on August 1 , 1974, to one count of conspiracy (18
USC Section 371)^ and five counts of violation of 18 USC Section
610, illegal campaign contribution. Fined $35,000.

Tim M. Babcock

Pleaded guilty on December 10, 1974, to an information charging
a one-count violation of 2 USC Section 440, making a contribution
in the name of another person. Sentenced to one year in prison
and fined $1,000, with all but four months of the prison sentence
suspended. Sentence under appeal.

Jack L. Chestnut

Indicted December 23, 1974, on one count of willful violation of
18 USC Section 610, aiding and abetting an illegal campaign con-
tribution. Pleaded not guilty January 6, 1975. Found guilty May 8,
1975,. after jury trial by Office of U.S. Attorney for Southern
District of New York, Sentenced June 26, 1975, to serve four
months in prison and fined $5,000. Conviction under appeal.

John B. Conn ally

Indicted on July 29, 1974, on two counts of accepting an illegal
payment (18 USC Section 201 [g]), one count of conspiracy to
commit perjury and obstruct justice (18 USC Section 371) and
two counts of making a false statement to a Grand Jury (18 USC
Section 1623). Pleaded not guilty August 9, 1974. Judge severs
last three counts for separate trial. Found not guilty on first two
counts April 17, 1975. Remaining counts dismissed April 18, 1975,
on motion of Special Prosecutor.

Harry S. Dent, Sr.

Pleaded guilty on December 11, 1974, to an information charging
a one count violation of the Federal Corrupt Practices Act (2 USC
Sections 242 and 252). Sentenced to one month unsupervised
probation.

DKI for 74

Pleaded guilty on December 13, 1974, to an information charging
a violation of 2 USC Sections 434 [a] and [b], and 441, failure to
report receipt of contributions and failure to report names, ad-
dresses, occupations and principal places of business of the persons
making such contributions. Suspended sentence.

Jack A. Gleason

Pleaded guilty on November 15, 1974, to an information charging
a one-count violation of the Federal Corrupt Practices Act, (2 USC
Section 252). Suspended sentence.

Jake Jacobsen

Indicted on February 21, 1974, on one count of violation of 18
USC Section 1623, making a false statement to a Grand Jury. In-

160

dictment dismissed by Chief Judge George L. Hart M&y 3, 1974.
Indicted July 29, 1974, on one count of making an illegal payment
to a public official (18 USC Section 201 [f]). Pleaded guilty August 7,
1974. Sentencing deferred.

Thomas V. Jones

Pleaded guilty on May 1, 1974, to an information charging a one-
count violation of 18 USC Sections 2 and 611, willfully aiding and
abetting a firm to commit violation of statute prohibiting campaign
contributions by government contractors. Fined $5,000

Herbert W. Kalmbach

Pleaded guilty on February 25, 1974, to a one-count violation of
the Federal Corrupt Practices Act, (2 USC Sections 242[a] and
252 [b]), and one count of promising federal employment as a
reward for political activity and support of a candidate (18 USC
Section 600) . -Sentenced to serve six to eighteen months in prison
and fined $10,000 on the first charge. On the second charge,
Kalmbach was sentenced to serve six months in prison, sentence to
run concurrent with other sentence. Began term July 1, 1974.
Released January 8, 1975. Sentence modified to time served.

John H. Melcher, Jr.

Pleaded guilty April 11, 1974, to an information charging a one-
count violation of 18 USC Sections 3 and 610, being an accessory
after the fact to an illegal corporate campaign contribution. Fined
$2,500.

Harold S. Nelson, former general mgr., Associated Milk Producers,
Inc. Pleaded guilty on July 31, 1974, to a one-count information
charging conspiracy to violate 18 USC Section 201 [f], (illegal pay-
ment to government official), and 18 USC Section 610, (illegal
campaign contribution) 18 USC Section 371. Sentenced Novem-
ber 1, 1974, to serve four months in prison and fined $10,000.
Term began November 8, 1974. Released February 21, 1975.

David L. Parr, former special counsel, Associated Milk Producers, Inc.
Pleaded guilty on July 23, 1974, to a one-count information
charging conspiracy to violate 18 USC Section 610, illegal campaign
contribution. Sentenced November 1, 1974, to serve four months in
prison and fined $10,000. Term began November 8, 1974. Released
February 21, 1975.

Stuart H. Russell

Indicted December 19, 1974, on one count of conspiracy to violate
18 USC Section 610, illegal campaign contribution (18 USC
Section 371), two counts of aiding and abetting a willful violation
of 18 USC Section 610, illegal campaign contribution (18 USC
Sections 2 and 610). Pleaded not guilty. Found guilty in San
Antonio, Texas, July 11, 1975. Sentenced in August 1975, to a
prison term of two years. Conviction under appeal.

Maurice Stans

Pleaded guilty March 12, 1975, to three counts of violation of the
reporting sections of the Federal Election Campaign Act of 1971,
2 USC Sections 434 [a] and [h], 441 ; and two counts of violation of
18 USC Section 610, accepting an illegal campaign contribution.
Fined $5,000 on May 14, 1975.

161

George M. Steinbrenner III, Chairman of the Board, American
Ship Building Co.

Indicted April 5, 1974, on one count of conspiracy (18 USC Sec-
tion 371); five counts of willful violation of 18 USC Section 610,
illegal campaign contribution; two counts of aiding and abetting
an individual to make a false statement to agents of the FBI
(18 USC Sections 2 and 1001), four counts of obstruction of
justice (18 USC Section 1503); and two counts of obstruction of a
criminal investigation (18 USC Section 1510). Pleaded not guilty
April 19, 1974.

On August 23, 1974, Steinbrenner pleaded guilty to the count of
the indictment charging a violation of 18 USC Section 371, con-
spiracy to violate 18 USC Section 610, and an information charging
one count of violation of 18 USC Sections 3 and 610, being an
accessory after the fact to an illegal campaign contribution. He
was fined $15,000 on August 30, 1974. The remaining counts of
the indictment were dismissed.

Wendell Wyatt

Pleaded guilty on June 11, 1975, to a one-count information
charging violation of the reporting provisions of the Federal
Election Campaign Act (18 USC Section 2[b] and 2 USC Sections
434 [a] and [b] and 441). Fined $750 on July 18, 1975.

Dirty Tricks, ITT and Other Matters

Dwight L. Chapin

Indicted on November 29, 1973, on four counts of violation of
18 USC Section 1623, making a false statement to a Grand Jury.
He pleaded not guilty December 7, 1973. One count was dismissed
by judge at conclusion of prosecution case. Found guilty on two of
three remaining counts on April 5, 1974. Sentenced May 15, 1974,
to serve 10 to 30 months in prison. Began serving sentence Au-
gust 10, 1975. Conviction upheld by U.S. Court of Appeals
July 14, 1975. Certiorari petition pending.

Richard G. Kleindienst

Pleaded guilty on May 16, 1974, to an information charging a
one-count violation of 2 USC Section 192, refusal to answer per-
tinent questions before a Senate Committee. Sentenced June 7,
1974, to a prison term of 30 days and fined $100. Sentence
suspended.

George A. Hearing 6

Indicted by federal grand jury in Orlando, Fla., May 4, 1973, on
two counts of fabricating and distributing illegal campaign litera-
ture (18 USC Section 612). Pleaded guilty May 11, 1973. Sen-
tenced to a prison term of one year on June 15, 1973. Released
March 22, 1974.

Edward L. Morgan

Pleaded guilty November 8, 1974, to an information charging
one count of conspiracy to impair, impede, defeat and obstruct

6 Matter not under jurisdiction of Special Prosecutor.

162

the proper and lawful governmental functions of the Internal
Revenue Service (18 USC Section 371). Sentenced to serve two
years in prison, all but four months suspended. Began term
January 6, 1975. Released April 23, 1975.

Howard E. Reinecke

Indicted April 3, 1974, on three counts of perjury (18 USC Section
1621). One count dropped by government on July 9, 1974; one
count dismissed by judge at conclusion of government’s case
on July 22, 1974. Found guilty on remaining count July 27, 1974.
Received suspended 18-month sentence on October 2, 1974.
Conviction under appeal.

Donald H, Segretti

Indicted May 4, 1973, in Orlando, Fla., on two counts of distribu-
tion of illegal campaign literature (18 USC Sections 612 and 371).
Pleaded not guilty. Indictment superceded by an August 24, 1973,
indictment unsealed September 17, 1973. The new indictment
charged four counts of conspiracy (18 USC Section 371) and three
counts of distribution of illegal campaign literature (18 USC
Section 612). Pleaded guilty October 1, 1973, to last three counts.
Sentenced November 5, 1973 to serve six months in prison. Began
term on November 12, 1973. Released March 25, 1974.

G. Gordon Liddy

Indicted March 7, 1974, on two counts of refusal to testify or
produce papers before Congressional Committee (2 USC Section
192). Pleaded not guilty March 14, 1974. Found guilty on both
counts May 10, 1974, Suspended six-month sentence.

Frank DeMarco, Jr.

Indicted February 19, 1975, on one count of conspiracy to defraud
the United States and an agency thereof by impairing, impeding,
defeating and obstructing the proper and lawful governmental
functions of the Internal Revenue Service (18 USC Section 371);
one count of making a false statement to agents of the Internal
Revenue Service (18 USC Section 1001); and one count of ob-
struction of an inquiry before a Congressional Committee (18
USC Section 1505). Indicted July 29, 1975, on one charge of
making a false statement to agents of the Internal Revenue
Service (18 USC Section 1001). Defendant pleaded not guilty to
all charges. Judge orders case transferred from Washington, D.C.
Trial set for September 18, 1975, in Los Angeles.

Ralph G. Newman

Indicted February 19, 1975, on one count of conspiracy to defraud
the United States and an agency thereof by impairing, impeding,
defeating and obstructing the proper and lawful governmental
functions of the Internal Revenue Service (18 USC Section 371);
and one count of aiding and assisting in the preparation of a false
document filed with a federal income tax return (26 USC Section
7206[2]). Judge orders case transferred from Washington, D.C.
Indicted August 15, 1975, on one count of submitting a false
document to agents of the Internal Revenue Service (18 USC
Section 1001). Trial set for October 28, 1975, in Chicago.

163

Original Watergate Defendants 7

Bernard L. Barker

Indicted September 15, 1972, on seven counts of conspiracy,
burglary, wiretapping and unlawful possession of intercepting
devices (one count of 18 USC Section 371, two counts of 22 DC
Code Section 1801 [b], two counts of 18 USC Section 2511,
two counts of 23 DC Code 543[a]). Pleaded guilty January 15, 1973.
Sentenced November 9, 1973, to a prison term of 18 months to
six years. Motion to withdraw guilty plea denied. Freed January 4,

1974, pending outcome of appeal. Appeal denied February 25,

1975. Sentence reduced by Judge John J. Sirica to time served.

Virgilio Gonzalez

Indicted September 15, 1972, on seven counts of conspiracy,
burglary, wiretapping and unlawful possession of intercepting
devices (one count of 18 USC Section 371, two counts of 22 DC
Code Section 1801fb], two counts of 18 USC Section 2511, two
counts of 23 DC Code 543[a]). Pleaded guilty January 15, 1973.
Sentenced November 9, 1973, to a prison term of one to four
years. Motion to withdraw guilty plea denied. Released on parole
March 7, 1974. Appeal denied February 25, 1975.

E. Howard Hunt

Indicted September 15, 1972, on six counts of conspiracy, bur-
glary, and wiretapping (one count of 18 USC Section 371, two
counts of 22 DC Code Section 1801 [b], three counts of 18 USC
Section 2511). Pleaded guilty January 11, 1973. Sentenced Novem-
ber 9, 1973, to a prison term of 30 months to eight years and fined
$10,000. Motion to withdraw guilty plea denied. Released on
personal recognizance January 2, >1974, pending outcome of appeal.
Appeal denied February 25, 1975. Re-entered prison on April 25,
1975.

G. Gordon Liddy

Indicted September 15, 1972, on six counts of conspiracy, bur-
glary, and wiretapping (one count of 18 USC Section 371, two
counts of 22 DC Code Section 1801 [b], three counts of 18 USC
Section 2511). Convicted January 30, 1973, on all counts. Sen-
tenced March 23, 1973, to a prison term of six years and eight
months to 20 years and fined $40,000. Released on bail October 15,
1974. Appeal denied. Re-entered prison February 16, 1975.

Eugenio R. Martinez

Indicted September 15, 1972, on seven counts of conspiracy,
burglary, wiretapping and unlawful possession of intercepting
devices (one count of 18 USC, Section 371, two counts of 22 DC
Code Section 1801 [b] , two counts of 23 DC Code 543 [a], two
counts of 18 USC Section 2511). Pleaded guilty January 15, 1973.
Sentenced November 9, 1973, to a prison term of one to four
years. Motion to withdraw guilty plea denied. Released on parole
March 7, 1974. Appeal denied February 25, 1975.

James W. McCord, Jr.

Indicted on September 15, 1972, on eight counts of conspiracy,
burglary, wiretapping and unlawful possession of intercepting

7 This case was prosecuted by the Office of the United States Attorney for the
District of Columbia, and then WSPF performed the appellate work.

164

devices (one count of 18 USC Section 371, two counts of 22 DC
Code Section 1801 [b], three counts of 18 USC Section 2511, two
counts of 23 DC Code Section 543[a]). Convicted January 30, 1973.
Sentenced November 9, 1973, to a prison term of one to five years.
Conviction upheld by U.S. Court of Appeals. Entered prison on
March 21, 1975. Released May- 29, 1975, pursuant to order re-
ducing sentence to time served.

Frank A. Sturgis

Indicted September 15, 1972, on seven counts of conspiracy,
burglary, wiretapping and unlawful possession of intercepting
devices (one count of 18 USC Section 371, two counts of 22 DC
Code Section 1801[b], two counts of 18 USC Section 2511, two
counts of 23 I)C Code Section 543[a]). Pleaded guilty January 15,
1973. Sentenced November 9, 1973, to a prison term of one to
four years. Motion to withdraw guilty plea denied. Released by
court order on January 18, 1974, pending outcome of appeal.
Parole Board announced on March 25, 1974, that parole would
commence on termination of appeal bond. Appeal denied Feb-
ruary 25, 1975.

MitcheU«Stcms Trial in New York

The following indictments were handed up by a federal grand
jury in New York on May 10, 1973, some two weeks before the Water-
gate Special Prosecution Force began its operations. Although tech-
nically under the jurisdiction of the Special Prosecutor, the cases were
tried by the office of the U.S. Attorney for the Southern District of
New York.

John Mitchell

Indicted on May 10, 1973, on one count of conspiracy to obstruct
justice (18 USC Section 371); three counts of endeavoring to
obstruct justice (18 USC Sections 1503, 1505, 1510, and 2); six
counts of making a false statement before a Grand Jury (18 USC
Section 1623). Pleaded not guilty May 21, 1973. Acquitted
April 28, 1974.

Maurice Stans

Indicted on May 10, 1973, on one count of conspiracy (18 USC
Section 371); three counts of endeavoring to obstruct justice
(18 U SC Sections 1503, 1505, 1510 and 2); and six counts of
making a false statement to a Grand Jury (18 USC Section 1623).
Pleaded not guilty May 21, 1973. Acquitted April 28, 1974.

Robert Yesco

Indicted on May 10, 1973, on one count of conspiracy to obstruct
justice (18 USC Section 371); and three counts of endeavoring to
obstruct justice (18 USC Sections 1503, 1505, 1510, and 2).
Presently a fugitive, living outside the United States. Charges
pending.

Harry Sears

Indicted on M&y 10, 1973, on one count of conspiracy to obstruct
justice (18 USC Section 371); and three counts of endeavoring to
obstruct justice (18 USC Sections 1503, 1505, 1510 and 2). Granted

165

immunity from prosecution in return for testimony at trial.
Charges dismissed March 17, 1975.

APPELLATE AND OTHER ACTIONS
Watergate Break-in

1. United States v. James W. McCord , Jr. (U.S.C.A. D.C. Cir.
73-2252)

2. United States v. G. Gordon Liddy (U.S.C.A. D.C. Cir. 73-1565)

3. United States v. E . Howard Hunt , Jr. (U.S.C.A. D.C. Cir. 73-2199)

4. United States v. Bernard L. Barker (U.S.C.A. D.C. Cir. 73-2185)

5. United States v. Eugenio R . Martinez (U.S.C.A. D.C. Cir. 73-2186)

6. United States v. Frank A. Sturgis (U.S.C.A. D.C. Cir. 73-2187)

7. United States v. Virgilio Gonzalez (U.S.C.A. D.C. Cir. 73-2188)
Convictions of original Watergate defendants upheld by U.S.
Court of Appeals. See United States v. Liddy , 509 F. 2d 482
(1974); United States v. McCord , 509 F. 2d 334 (1974); United
States v. Barker , 514 F. 2d 208 (1975); United States v. Hunt, 514
F. 2d 270 (1975). McCord and Liddy appealed convictions after
trial by jury. Others appealed denial of motions to withdraw
pleas of guilty.

Petitions for writs of certiorari filed in the Supreme Court by
Liddy (Sup. Ct. 74-5678), McCord (Sup. Ct. 74-988), and Barker
(Sup. Ct. 74-6308) were denied on January 27, 1975, April 21,
1975, and June 9, 1975, respectively.

* * * * * * *

8. United States v. George Gordon Liddy (U.S.C.A. D.C. Cir. No. 73-
1564)

9. In Re Grand Jury Proceedings, George Gordon Liddy (U.S.C.A.
D.C. Cir. No. 73-1562)

Liddy, who had been sentenced for his conviction in the break-in
of the Democratic National Committee, was adjudged in civil
contempt for refusing to testify before a grand jury after being
granted immunity. He was ordered confined, and execution of
sentence in the criminal case was suspended during his confine-
ment for civil contempt. On October 10 and December 12, 1974,
the Court of Appeals affirmed the action of the District Court.
See United States v. Liddy , 506 F. 2d 1293 (1974) and 510 F. 2d
669 (1974). Liddy’s petition for writ of certiorari filed in the
Supreme Court (Sup. Ct. 74-5828) was denied on March 17, 1975.
*******

10. United States v. George Gordon Liddy (U.S.C.A. D.C. Cir. No.
73-1753)

Appeal from district judge’s denial of motion to reduce sentence
pending.

Watergate Cover-up

1 . In Re Application oj United States Senate Select Committee on
Presidential Campaign Activities (U.S. D.C. D.C. Misc. No. 70-73)
Senate Select Committee applied for use immunity for Jeb Stuart

166

Magruder and John W. Dean III pursuant to 18 U.S.C. §§ 6001,
6005 on May 19, 1973. Special Prosecutor sought an order requir-
ing the immunized witness to testify before the Committee in
executive session in order to prevent pre-trial publicity. Court
granted the immunity orders without condition on June 12,
1.973. ‘ ^ n

2. Haldeman v. Sirica (U.S.C.A. D.C. Cir. No. 74-1364), 501 F. 2d
714 (1974).

3. Strachan v. Sirica (U.S.C.A. D.C. Cir. No. 74-1368)

Petition for a writ of mandamus to prohibit transfer of Grand
Jury report to the House Judiciary Committee investigation into
possible impeachment of President Nixon denied on March 21,
1974.

4. Mitchell , et al . v. Sirica (U.S.C.A. D.C. Cir. No. 74-1492), 502
F. 2d 373 (1974).

Petition for a writ of mandamus to recuse Judge Sirica denied
on June 7, 1974.

5. Mitchell , et al. v. Sirica (Sup. Ct. No. 73-2001)

Petition for a writ of certiorari to review above ruling concerning
recusal of Judge Sirica denied on July 25, 1974.

6. Haldeman v. Sirica (U.S.C.A. D.C. Cir. No. 74-1727)

Petition for a writ of mandamus challenging validity of grand
jury extension act and seeking dismissal of the indictment denied
on August 14, 1974.

7. Haldeman v. Sirica (Sup. Ct. No. 74-236)

Petition for a writ of certiorari to review denial of mandamus
relating to grand jury extension denied on November 11, 1974.

8. Ehrlichman v. Sirica (U.S.C.A. D.C. Cir. No. 74-1826)

Haldeman v. Sirica (U.S.C.A. D.C. Cir. No. 74-1826)

Petition for a writ of mandamus or prohibition seeking a continu-
ance of the case. The Court suggested a 3-4 week continuance as
appropriate for further trial preparation on August 22, 1974.

9. Ehrlichman v. Sirica (Sup. Ct. No. A-93), 419 U.S. 1310 (1974).
Application for a stay of trial pending consideration of petition
for a writ of mandamus or prohibition denied on September 2,
1974.

10. Strachan v. Sirica (U.S.C.A. D.C. Cir, No. 74-1868)

Petition for a writ of mandamus filed under seal seeking dismissal
of indictment on grounds of immunity denied on September 20,
1974.

11. Mitchell v. Sirica (U.S.C.A. D.C. Cir. No. 74-1878)

12. Ehrlichman v. Sirica (U.S.C.A. D.C. Cir. No. 74-1876)

Petitions for writs of mandamus seeking an indefinite postponement
of the trial denied on September 20, 1974.

13. Mitchell cfe Haldeman v. Sirica (Sup. Ct. No. A-217)

Application for a stay of the trial pending petition for a writ of
certiorari from denial of petition for writ of mandamus or pro-
hibition denied on September 27, 1974.

14. Mitchell , Haldeman , Ehrlichman , Mardian & Parkinson v. Sirica
(U.S.C.A. D.C. Cir. No. 74-1949)

Petition for a writ of prohibition seeking to alter trial judge’s
procedures for exercising peremptory challenges of prospective
jurors denied on October 11, 1974.

15. United States v. Haldeman (U.S.C.A. D.C. Cir. No. 75-1381)
United States v. FJhrlichman (U.S.C.A. D.C. Cir. No. 75-1382)

167

United States v. Mardian (U.S.C.A. D.C. Cir. No. 75-1383)
United States v. Mitchell (U.S.C.A. D.C. Cir. No. 75-1384)
Appeals from convictions in United States v. Mitchell pending.

* * * * * * *

Fielding Break-in

1 . United States v. De Diego (U.S.C.A. D.C. Cir. No. 74-1769), 511
F. 2d 818 (1975).

Dismissal of charges against Felipe De Diego reversed; case
remanded for hearing.

2. United States v. John D. Ehrlichman (U.S.C.A. D.C. Cir. No.
74-1882)

3. United States v. Bernard L . Barker (U.S.C.A. D.C. Cir. No.
74-1883)

4. United States v. Eugenio Martinez (U.S.C.A. D.C. Cir. No.
74-1884)

5. United States v. G. Gordon Liddy (U.S.C.A. D.C. Cir. No. 74-1885)
Defendants' appeals of convictions pending.

6. United States v. John D. Ehrlichman (U.S.C.A. D.C. Cir. No.
74-1921)

Governments appeal of trial judge's setting aside of the jury's
verdict on one count of the indictment (18 U.S.C. § 1001) volun-
tarily dismissed by the government.

* * * * * * *

Subpoenas for Presidential Tape Recordings

1 . In Re Grand Jury Subpoena Duces Tecum Issued to Richard M.
Nixon or any Subordinate Officer, Official or Employee with Custody
or Control of Certain Documents or Objects . Richard M. Nixon ,
Appellant (U.S.D.C. D.C. Misc. No. 47-73), 360 F. Supp. 1 (1973)
On August 29, 1973, Chief Judge John Sirica enforced a grand jury
subpoena to Richard M. Nixon for nine Presidential recordings.
After the ruling was upheld, hearings were conducted concerning
two missing conversations and an 18 % minute gap on a third
tape.

2. Nixon v. Sirica (U.S.C.A. D.C. Cir. No. 73-1962), 487 F. 2d 700
(1973).

3. United States v. Sirica (U.S.C.A. D.C. Cir. No. 73-1967)
Cross-petitions for writs of mandamus to review order enforcing
grand jury subpoena. Order of district court, with modifications
upheld on October 12, 1973.

4. Nixon v. Sirica (U.S.C.A. D.C. Cir. Nos. 74-1618, 74-1753)
Appeal and petition for mandamus to review Judge Sirica's
order of June 12, 1974, reconsidering earlier ruling that the final
portion of the September 15, 1972, Nixon-Haldeman-Dean
conversation, subpoenaed by the grand jury, was subject to a
valid claim of privilege. On August 6, 1974, the appellant moved
for voluntary dismissal which was granted on August 7.

5. United States v. Nixon (Sup. Ct. No. 73-1766), 418 U.S. 683
(1974)

Nixon v. United States (Sup. Ct. No. 73-1834)

168

Petition and cross petition for writ of certiorari before judgment
to review Judge Sirica's May 20, 1974, order enforcing Special
Prosecutor's trial subpoena for 64 Presidential tape recordings
issued April 16, 1974. Writs were granted on May 31, 1974;
arguments were heard July 8, 1974; and a unanimous Court
upheld the lower court order on July 24, 1974. (See United
States v. Mitchell , 377 F. Supp. 1326 (1974).)

Nixon Tapes and Documents

1. Nixon v. Sampson (U.S.D.C. D.C. Civil No. 74-1518)

2. Reporters Committee for Freedom of the Press v. Sampson (U.S.D.C.

D.C. Civil No. 74 1 1533)

3. Lillian Heilman v. Sampson (U.S.D.C. D.C. Civil No. 74-1551)
Consolidated suits seeking enforcement of and challenging agree-
ment relating to custody of tapes and documents compiled dur-
ing the Nixon Administration.

4. Nixon v. Richey (U.S.C.A. D.C. Cir. No. 75-1063), 513 F. 2d 427

(1975), 513 F. 2d 430 (1975)

Petition for writ of mandamus granted staying effectiveness of
district judge's decision in Nixon v. Sampson.

5. Richard M . Nixon v. Administrator, General Services Administra-

tion (U.S.D.C. D.C. Civil No. 74-1852)

Suit challenging the constitutionality of the Presidential Record-
ings and Materials Preservation Act concerning the custod}^ and
disposition of tapes and documents compiled during the Nixon
Administration.

Miscellaneous Appellate Proceedings

1. Howard Edwin Reinecke v. Parker (U.S.C.A. D.C. Cir. No. 74-

1533)

Petition for a writ of mandamus seeking transfer of plaintiff's case
to U.S. District Court for the Northern District of California
denied on June, 1974.

2. United States v. Dwight L . Chapin (U.S.D.C. D.C. Cir, No. 74-

1648), 515 F. 2d 1274 (1975)

Conviction affirmed. Petition for a writ of certiorari in the Supreme
Court pending.

3. United States v. Howard Edwin Reinecke (U.S.C.A. D.C. Cir. No.

74-2068) ^

Appeal of criminal conviction pending.

4. United States v. Hon . Robert Hill, U.S. District Judge (U.S.C.A.

Fifth Cir. No. 74-3738)

United States v. Ray Cowan and Jake Jacobsen, Defendants, and
Wayne 0. Woodruff, et at., Special Prosecutors , Appellees
(U.S.C.A. Fifth Cir. No. 74-3941)

Appeals from the appointment of a special prosecutor by district
judge after the government agreed to dispose of pending federal
charges against Jacobsen upon his agreement to plead guilty to a
charge in U.S. District Court for the District of Columbia. Petition
for mandamus filed November 22, 1974. Both actions pending.

169

5. United States v. Gasch (U.S.C.A. D.C. Cir. No. 75-1452)

Petition for writ of mandamus to set aside order of district judge
transferring trials of Frank DeMarco and Ralph Newman to the
Central District of California and the Northern District of
Illinois, respectively, denied.

6. United States v. Tim M. Babcock (U.S.C.A. D.C. Cir. No. 74-1285)
Appeal challenging judge’s authority to impose prison ‘sentence
under 2 U.S.C. §441 for misdemeanor violation.

Miscellaneous District Court Proceedings

Numerous grand jury matters were litigated before the Chief
Judge of the District Court, including motions to quash subpoenas
and claims of privilege. In addition, the Special Prosecutor on several
occasions moved for authority under Rule 6(e) of the Federal Rules of
Criminal Procedure to make grand jury materials available to other
government agencies and bar associations, when those materials w^ere
relevant to matters within their jurisdictions. Finally, the Special
Prosecutor was subject to several civil suits, including actions under
the Freedom of Information Act and actions challenging the validity
of the pardon granted to former President Nixon by President Ford.
All of the civil suits have been dismissed by the various courts in
which they were filed.

170

Appendix B:

Organizational

History

This appendix is a narrative of events leading up to the formation
of the Special Prosecutor's office in the spring of 1973, the organization
of the office, and its eventual abolition and re-establishment, all within
a 5 -month period.

BACKGROUND TO THE APPOINTMENT OF
THE SPECIAL PROSECUTOR

By the spring of 1973 there were strong indications that “Water-
gate” involved more than the “third-rate burglary” described by a
White House spokesman. The press had linked high officials of the
Committee to Re-Elect the President with the break-in and had
uncovered facts which suggested that the White House and other
Federal agencies had engaged in such activities as political espionage,
break-ins, obstruction of justice and irregularities in campaign
financing. In short, a trail of misdeeds seemed to lead directly to the
White House.

Although the President and the then Attorney General insisted
that the original Watergate investigation had been exhaustive, a
number of circumstances caused increasing suspicion that much more
probing was necessary :

— In late February and early March, Acting FBI Director L. Pat-
rick Gray revealed that the Bureau had investigated little other than
the break-in itself and had not pursued other allegations.

— In March, one of the defendants, James McCord, wrote a letter
to Judge Sirica alleging a “cover-up” of incidents surrounding the
break-in. He charged that persons yet unnamed were involved in the
case, that perjury had been committed at the trial of the burglars, and
that political pressure had been applied to the defendants to induce
them to plead guilty and remain silent.

— On April 15, Attorney General Richard Kleindienst disqualified
himself from the investigation because of his close personal and pro-
fessional relationship with persons under suspicion.

171

— On April 30, White House Press Secretary Ronald Ziegler an-
nounced the resignations of Haldeman and Ehrlichman, and the firing
of Dean. In the same announcement, he revealed that Kleindienst
had resigned and had been replaced by the Secretary of Defense,
Elliot Richardson.

That evening, in a television address to the Nation, President
Nixon said that he had given Richardson absolute authority over
the Watergate case and related matters, including the authority to
name a special prosecutor if he considered it appropriate to do so.

In the week that followed, several resolutions calling for the ap-
pointment of a special prosecutor were introduced in the Congress.
Members of the Senate Judiciary Committee (who were about to
consider Richardson’s nomination as Attorney General) privately
pressed him for an assurance that he would appoint a special prose-
cutor. Some Senators even said publicly that Richardson’s confirma-
tion would depend on such an appointment. On May 7, Richardson
announced that, if confirmed, he would appoint a special prosecutor.
The next day Senator Adlai Stevenson, III, introduced a resolution,
cosponsored by 23 Democrats, which set forth terms designed to
guarantee the independence and authority of a special prosecutor.

ESTABLISHING THE JURISDICTION,

AUTHORITY AND INDEPENDENCE OF THE SPECIAL PROSECUTOR

Richardson’s confirmation hearings, which began on May 9,
focused on the terms in the Stevenson resolution he would guarantee
and the jurisdiction he would give to the special prosecutor. As to
jurisdiction, Richardson testified that he would delegate responsibility
over the following:

1. All cases arising out of the 1972 Presidential election campaign,
including the Watergate break-in case, the Donald Segretti case
(Segretti had been charged on May 4 in Florida with fabricating and
distributing a letter damaging to three Democratic presidential candi-
dates), and violations of campaign laws;

2. Cover-up conspiracies and misuse of high Government offices;

3. The burglary of the office of the psychiatrist of antiwar activist
Daniel Ellsberg; and

4. Procrastination or obfuscation by the Department of Justice,
the FBI, or any other agency relating to the cover-up of these cases.

Richardson pointed out that the common denominator of the
special prosecutor’s jurisdiction would be allegations of involvement
of White House or CRP officials, or Administration appointees. He
said he intended to leave the assignment open in order to delegate
matters which at the outset did not seem to be related to Watergate,
but which might later prove to be so related. He added that he did

172

not know enough at that time about the milk fund case or the Vesco
case to decide whether they should be included, and said that he would
deal later with the question of delegating responsibility to investigate
various other activities of the White House “Plumbers.”

Richardson was equally explicit in his testimony about the author-
ity of the special prosecutor. The special prosecutor, he stated, would
have the necessary financial support to do the job and full authority to
select a staff and to exercise the powers normally vested in the As-
sistant Attorney General in charge of the Criminal Division . 1 In the
latter connection, Richardson testified that the special prosecutor
would be empowered to decide what kind of relationship he would
have with various U.S. Attorneys investigating matters under his
jurisdiction, including the right to overrule a U.S. Attorney, to inter-
vene at any phase of proceedings being conducted, to dismiss any
indictments already brought and to bring more serious charges if he
deemed it appropriate.

Richardson further stated that he intended to give the special
prosecutor complete authority to challenge claims of executive privi-
lege (including the right to seek court review ) 2 and assertions of the
right to withhold information on national security grounds. Richardson
also testified that the special prosecutor would have the authority to
determine if and when to seek a court order granting immunity to a
witness . 3

The question of the special prosecutor's “independence” was more
difficult. On the one hand, Richardson assured the Committee that
the special prosecutor would not be removed from office except for
malfeasance or gross incompetence. On the other hand, Richardson
was faced with the legal obligations which he would assume if con-
firmed as Attorney General. The Stevenson resolution called for the
appointment of a special prosecutor with “final” authority. Richard-
son objected to the use of the word “final”; he felt that statutes giving
the responsibility for the administration of the Department of Justice
to the Attorney General required that the Attorney General retain
ultimate authority. While he said he would delegate “full” authority
to the special prosecutor, he took the position that he would exercise
his ultimate authority only if the special prosecutor was “behaving
arbitrarily or capriciously.” Richardson stressed that he would not

1 Richardson also assured the Committee that he would request the Justice
Department and the FBI to detail personnel to the special prosecutor’s office.

2 Since the President’s Counsel would represent the White House in such liti-
gation, Richardson said he would not exercise the traditional role of the Attorney
General to interpret the applicability of the doctrine of executive privilege.

3 By law (18 U.S.C. § 6003), any request by a Federal prosecutor to a court
for an immunity order must be approved by the Attorney General, Deputy
Attorney General or designated Assistant Attorney General. Richardson said he
intended to give approval automatically to any such requests by the special
prosecutor.

173

interpose his judgment over the special prosecutor's in such discre-
tionary matters as whether to request a grant of immunity, whether
to seek an indictment and, if so, on what charges, or whether to take
the prosecutorial responsibility out of the hands of a U.S. Attorney.
It was Richardson's view that he would be available to consult with
the special prosecutor, that he would give whatever advice he could
and would want to be kept generally informed, but that the special
prosecutor would not be under any obligation to keep him informed
or to seek his approval in advance of a prosecutive decision.

Richardson thought the likelihood of his intervention was so
remote as to be practically inconceivable. If it occurred, he said, it
would be due to arbitrary action either by the special prosecutor or
himself; if the latter were true, the special prosecutor would have a
duty to make the situation known immediately. Richardson further
assured the Committee of his support for a full and thorough investiga-
tion and suggested that, at some subsequent stage when the special
prosecutor had substantially completed his job, a panel might be
created to review the whole record of the special prosecutor's activities.

SELECTION OF ARCHIBALD COX
AS SPECIAL PROSECUTOR

On the first day of the hearings Richardson announced that he had
consulted 80 to 100 individuals, including the presidents of the Ameri-
can Bar Association and the American College of Trial Lawyers, and
had asked them to submit names for the position of special prosecutor.
He said he would draw up a list, submit it to certain individuals for
further comment and then adopt an order in which to approach the
persons recommended. He asked the Judiciary Committee to invite
the candidate to testify and promised that he would select another if
the Committee or the full Senate, by resolution, did not approve his
choice.

Richardson was asked and agreed to submit the “finalists” list to
members of the Committee for their comment. He did so after narrow-
ing the list to four persons. On May 15, he announced that the first
person on the list was then examining the guidelines drawn up to
describe the special prosecutor's authority and responsibilities. He
told the Committee that he anticipated incorporating suggestions
from the candidate and promised to let them know if the top persons
turned down the job because they felt there was insufficient flexibility
in the guidelines.

Later that day Richardson's first choice, U.S. District Judge
Harold Tyler of New York, declined the job. He told, the press he
thought it would be wrong to resign his judgeship, particularly in
light of the fact that the ground rules were not completely settled.

174

Richardson said he would confer with the remaining candidates before
offering the post to anyone. The next day, Warren Christopher, a
California attorney and former Deputy Attorney General of the
United States, removed himself from consideration after conferring
with Richardson. He announced that he had done so because he
would not have been granted enough independence.

On May 17 Richardson sent the guidelines for the special prose-
cutor’s job to the Judiciary Committee to clarify his position, as
refined by the hearings and his interviews with the candidates for
special prosecutor. He pledged that he would not countermand or
interfere with the special prosecutor’s decisions or actions and would
not remove the special prosecutor except for extraordinary impro-
prieties. He also announced that he was adding ten names to the list
of candidates.

On May 18 Richardson announced that if the Senate approved
his own nomination he would appoint Archibald Cox to be the Special
Prosecutor. Cox was a professor of constitutional law at Harvard Law
School and had served as Solicitor General of the United States. A
final version of Richardson’s guidelines — amended to specify that the
Special Prosecutor would determine whether and to what extent he
would inform or consult with the Attorney General about the conduct
of his duties and responsibilities — was presented to the Committee
that day. In a separate announcement Cox said he was satisfied that
Richardson’s guidelines would permit sufficient independence to do
the job right. He said that he had studied these guidelines and was
satisfied that they gave him all the formal power he needed. As further
insurance, Cox agreed to keep a detailed record of his conversations
with Richardson and to make a full final report of his work, including
factual findings as to high Government officials. Cox said he considered
that the “full” authority vested in him was, for all practical purposes,
“final,” and suggested that the only authority Richardson was re-
taining was “to give me hell if I do not do the job.”

On May 23, the Senate Judiciary Committee voted unanimously
to recommend the confirmation of Elliot Richardson. He was con-
firmed that same day by the full Senate and was sworn in as Attorney
General on May 25. Several hours later Cox was sworn in as Special
Prosecutor.

ORGANIZATION OF THE

WATERGATE SPECIAL PROSECUTION FORCE

On May 31 Richardson issued an order establishing WSPF and
setting forth the duties and responsibilities of the Special Prosecutor.
He designated Cox as Director of the office and directed all divisions,
offices, services and bureaus of the Department of Justice, including

17S

the FBI and U.S. Attorneys, to cooperate with the Special Prosecutor
on all matters under his jurisdiction, 4

After Cox had familiarized himself with the factual matters falling
within his purview, he met with the Attorney General and Henry
Petersen, the Assistant Attorney General for the Criminal Division,
to clarify which investigations that the Criminal Division had been
handling were encompassed by this mandate. They decided :

—That the Special Prosecutor would be responsible for all cases
arising out of the Vesco indictments already returned by the grand
jury in the Southern District of New York, but that the Criminal
Division, under the supervision of the Special Prosecution Force,
would be responsible for the extradition of Vesco;

— That the indictment returned by the Middle District of Florida
against Donald Segretti and all cases of campaign violations arising
out of the activities of Segretti would be the responsibility of the
Special Prosecutor;

— That the Criminal Division would prepare an inventory of all
election law cases and investigations then pending with respect to
the 1972 Presidential campaign and those Senatorial and Congres-
sional campaigns arguably related to matters within the Special
Prosecutor’s jurisdiction ; the Special Prosecutor would then designate
from the inventor those matters over which he would assume total
or supervisory responsibility ;

— That the Special Prosecutor would be responsible for all matters
relating to the burglary of the office of Daniel Ellsberg’s psychiatrist;

— That allegations related to the Presidential commutation of
Angelo DeCarlo’s sentence (DeCarlo had been convicted of extortion)
would be investigated by the Special Prosecutor;

— That the Special Prosecutor would be responsible for pursuing
any criminal violations in the Department of Justice’s settlement of an
antitrust case against the International Telephone and Telegraph
Company (ITT); this included possible perjury in testimony before
the Senate Judiciary Committee relating to that settlement, and the
Securities and Exchange Commission’s (SEC) referral to the Justice
Department of an allegation that ITT had obstructed an SEC investi-
gation by failing to turn over all relevant documents sought under an
SEC subpoena; 5 and

4 The full jurisdiction of WSPF is contained in the charter documents included
below in Appendix J.

5 In June 1972 the Senate Judiciary Committee had referred its transcripts
of the hearings on the nomination of Richard Klein dienst to be Attorney General —
during which much testimony about the ITT antitrust settlement had been
given — to the Justice Department for investigation of possible peijury. Shortly
thereafter the SEC had referred its subpoena question to Justice, The investiga-
tion of these matters had not been completed in June 1973. On June 7 Richardson
had asked Cox to take responsibility for the whole matter. Cox had agreed and
Richardson had so notified the Chairman of the Senate Judiciary Committee.

17 $

— That the Special Prosecutor would investigate allegations of
contributions to the President’s campaign by the Lehigh Valley
Dairy Association in return for assistance in matters affecting the
Association . 6

Cox realized that he must organize his office so that it could address
new and developing allegations as well as assimilate quickly the vast
amount of information which had already been uncovered in matters
falling under his jurisdiction. He selected two colleagues from Harvard
Law School — Philip Heymann, who had worked for Cox when Cox
was Solicitor General, and James Vorenberg, who had served as
Executive Director of the President’s Commission on Law Enforce-
ment and Administration of Justice 7 — to help him undertake these
tasks. In their first days at WSPF, they resolved organizational details
with the Attorney General, and established an operating relationship
with the Assistant U.S. Attorneys for the District of Columbia who
were working on the Watergate investigation, with the Assistant U.S.
Attorneys for the Southern District of New York who were handling
the Vesco case, and with the FBI. They attempted in the first few days
to delay public hearings of the Senate Select Committee on Presi-
dential Campaign Activities and to obtain an inventory, and prevent
any possible removal, of documents in the White House files which
might be useful to the investigations. During this early period they
also recruited staff and supervised the physical establishment of an
office.

Cox wanted the WSPF staff to be independent, professional and
non-partisan. He felt this was, necessary to instill confidence in the
public that all allegations would be evaluated objectively and invest-
igated fully and to instill confidence in potential witnesses that their
evidence would be weighed seriously and would not be relayed to the
Justice Department or to the White House. Although “administra-

6 It was decided that the Criminal Division (1) would handle two investigations
already well underway in that Division; (2) would handle the civil cases Ellsberg v.
Mitchell and Halperin v. Kissinger , charging illegal wiretapping, and would make
available to the Special Prosecutor all pleadings before they were filed in the
cases; and (3) would answer defense allegations in U.S . v. Briggs and U.S . v.
Ayers that illegal methods had been used by the White House or the President’s
campaign committee to obtain evidence against the defendants and would send
to the Special Prosecutor copies of all investigative requests to the FBI relating
to these allegations and any information thereby developed by the FBI which
related to matters within the Special Prosecutor’s jurisdiction. In return the
Special Prosecutor would send to the Criminal Division any information he
developed bearing on these allegations. It was further decided that the Tax Divi-
sion of the Justice Department would continue to handle potential gift tax viola-
tions in connection with political contributions and would advise the Special
Prosecutor of violations i elated to matters within his jurisdiction.

7 Stephen Breyer, another Harvard colleague, also joined WSPF for the sum-
mer to help organize the ITT Task Force.

177

tively” his office was part of the Justice Department, he wanted it
to function as a separate agency. No one from the Justice Department
who had had any prior connection with cases within WSPF's juris-
diction or with the White House was hired. Any employee hired from
the Department was formally transferred to the staff of the Special
Prosecution Force. Cox early decided to establish his own press office
rather than to use the Public Information Office of the Department
to handle press contacts.

As soon as Cox's appointment was announced, a large number of
applications came into his office. By estimate, more than 1,000 appli-
cations or expressions of interest came to the new office's attention
in the first few weeks. Vorenberg reviewed these and, to fill the senior
positions, Cox and be solicited recommendations and evaluations from
judges, prosecutors and practicing lawyers. The need to build up
a staff quickly required that applicants be available to begin work
immediately. A number of those finally selected were known to Cox
or Vorenberg through professional or school associations.

From the beginning it seemed clear that the Special Prosecutor's
assignments fell into logical divisions and that the office could be
organized into “task forces” along those lines. At the same time,
because of certain similarities in the areas of investigation, it was
recognized that a task force might turn up information of peripheral
value which might be significant to another task force's work. Cox
anticipated that central coordination and frequent contact among
the task forces could minimize the possibility that such information
would be neglected. In the first few weeks Vorenberg had principal
responsibility for this coordination function which was seen as a pri-
mary function of the person who would become Deputy Special
Prosecutor.

James Neal, a criminal defense lawyer who had served as U.S.
Attorney in Tennessee, joined the staff on May 29 to head a task force
investigating the Watergate break-in and cover-up. He spent the first
few weeks at the District of Columbia U.S. Attorney's office working
with the Assistant U.S. Attorneys who had been handling that case.
Other early recruits were hired without specific assignments desig-
nated for them. Thomas McBride, a former prosecutor and criminal
justice administrator, also joined on May 29. He was asked to gather
information about several other areas of investigation. He met with
the Assistant U.S. Attorneys handling the Vesco case and with attor-
neys from the Criminal Division who were investigating 1972 Presi-
dential campaign contribution reporting violations. He shortly took
over responsibility for the Campaign Contributions Task Force.
Heymann worked with Neal on the Watergate investigation and then
shifted to reviewing evidence of illegal activities by the White House
Plumbers Unit. James Doyle, a national reporter for the Washington
Star News , was hired to head the press office.

178

Thirty days after Cox took office the staff numbered approxi-
mately 33 persons, including 21 lawyers. By late June, Cox and Neal
became concerned that the lawyers on hand would not be able to
assimilate the mass of information being provided daily in testimony
before the Senate Select Committee and other Congressional com-
mittees. Consequently ten recent law school graduates were hired
and assigned to summarize the Congressional committee transcripts.
In addition, Harry Bratt, a career Government administrator with
background in computer usage, was hired to study the possibility of
computerizing the growing volume of information.

Henry Ruth joined the staff as Deputy Special Prosecutor on
July 2. Ruth, a former prosecutor from the Justice Department’s
Organized Crime Section, had later served as Deputy Director of the
Crime Commission, and in 1973 was Director of the New York City
Criminal Justice Coordinating Council. As Deputy, Ruth was to
supervise the investigations closely and to coordinate the work of the
task forces.

Also on July 2, Philip Lacovara, then Deputy Solicitor General
of the United States, joined the staff as Counsel to the Special
Prosecutor.

By mid-July, William Merrill, a former Assistant U.S. Attorney
from Michigan, had been assigned to head the investigation of the
“Plumbers” activities; Joseph Connolly, an attorney from Phila-
delphia, was designated as head of the ITT Task Force; and Richard
Davis, a prosecutor from the U.S. Attorney’s office for the Southern
District of New York, was placed in charge of the investigation of
Segretti’s activities and other campaign “dirty tricks.” (Later in the
summer Davis took over joint responsibility with Connolly for the
ITT Task Force.) In late July, on Bratt’s recommendation, Cox
approved the establishment of a computerized Information Section
to provide the capability for comparing discrepancies in testimony and
for completely cross-referencing subjects and persons mentioned in
testimony. The lawyers of the Information Section were assigned to
other positions in the office and a paralegal staff was hired and trained
for the computer operation. 8

By the middle of summer 1973, five task forces were in operation.
By early September there were 42 lawyers (including four consultants)
and 44 other staff members at WSPF. Although there was some staff
turnover during the following 18 months and some refinements in the
original organizational plan, the office continued with this general
structure throughout its tenure, with the abandonment of a task force
only upon completion of its work. The office had its highest number
of employees in August 1974 when there were 95 staff members.
An organizational chart of the office is shown on page 181.

8 The work of the Information Section is described in Appendix H.

179

DISMISSAL OF COX;

ABOLITION AND RE-ESTABLISHMENT OF WSPF

The events leading up to the firing of Cox and abolition of WSPF
are set out in Chapter 4 of the principal report. This section describes
the period immediately following Cox’s firing.

After Acting Attorney General Bork fired Cox, General Haig,
of the White House Staff, directed Clarence Kelley, Director of the
FBI, to send agents to the WSPF office on the evening of October 20
to prevent removal of any documents. Agents were also dispatched
to the Attorney General’s and the Deputy Attorney General’s offices.

For approximately 16 hours, from 9:05 p.m., on October 20, 1973,
to 12:47 p.m. on October 21, 1973 — agents of the Federal Bureau
of Investigation occupied the offices of WSPF. Although official docu-
ments could not be removed, the most important and sensitive docu-
ments had been copied earlier in the week after White House counsel
Charles Alan Wright hinted in an October 18 letter to Special Prose-
cutor Cox that if Cox refused to agree to White House compromise
proposals on access to Presidential tape recordings, “we will have to
follow the course of action that we think in the best interest of the
country.” Task force leaders and other senior staff members then re-
moved copies of certain items from the office, replacing them when
Judge John J. Sirica signed a protective order covering the files on
October 26. Copies of documents of a particularly sensitive nature
were placed in two safe-deposit boxes in nearby banks.

On the Saturday night of Cox’s firing, the Special Prosecutor’s
staff immediately reported to the office. One of their main concerns
was to secure files from anyone who might want to, or be ordered to,,
read or destroy the files. Since the FBI agent in charge did not have
written instructions of his responsibilities and since he said he did
not have authority to approve any movement of files within the office,
Deputy Special Prosecutor Ruth contacted Henry Petersen, Assist-
ant Attorney General for the Criminal Division of the Justice De-
partment, and received approval to gather the most sensitive papers
and place them in front office file safes to which only a few WSPF
personnel had the combinations. Ruth also advised Petersen that an
important witness was scheduled to testify before the grand jury the
following Tuesday and Petersen agreed that that appointment should
be kept. Bork gave assurances that the Special Prosecutor’s employees
were not fired but were to be made employees of the Criminal Division.
The staff was advised of these telephone calls and agreed not to take
any precipitous action until they had a better understanding of the
situation. Around midnight they left the office.

180

WATERGATE SPECIAL PROSECUTION

WATERGATE
TASK FORCE

PLUMBERS
TASK FORCE

CAMPAIGN
CONTRIBUTIONS
TASK FORCE

Sometime in the morning hours of October 21, the Justice Depart-
ment ordered U.S. Marshals to replace the FBI agents occupying
the WSPF offices. The marshals arrived at 12:47 p.m. that day.

The next day, a holiday, the staff gathered at the office to assess
the situation. Bork announced that Petersen was now in charge of the
investigation. That evening Ruth and Lacovara met with Bork and
Petersen to discuss the operational relationship between WSPF and
the Criminal Division. Ruth agreed to bring each task force to meet
with Petersen. Ruth and Lacovara then returned to the office and
briefed the staff on the meeting; the staff discussed alternatives and
reached no firm conclusions about what it should do.

On Tuesday morning Judge Sirica assured the grand juries that
they could rely on the court to safeguard their rights and preserve the
integrity of their proceedings. He also scheduled a court hearing on
the Presidential tapes at 2 p.m. that day. At the hearing Wright
announced that he was not prepared to file a response, but was
authorized to say that the President would comply in all respects
with the court orders. Shortly thereafter Haig announced withdrawal
of the offer of summaries of the tapes to the Senate Select Committee. 9

That same day Bork issued a written order, effective as of October
21, abolishing the Watergate Special Prosecution Force and returning
its functions to the Criminal Division. During the next few days
Bork and Petersen met several times 'with Ruth and Lacovara and
met once with the full senior staff of the office. Petersen and his
assistant John Keene}^ met with task forces investigating ITT and
dairy contributions, and the next week met with the task force
investigating the break-in of Daniel Ellsberg's psychiatrist's office.

On October 24 Bork announced that the White House had agreed
there should be “regularized procedures” for turning over evidence
to the Watergate prosecutors. During that week and the next, draft
letters to the White House asking for various records were sent by
several task forces to Petersen for his consideration and Petersen
arid Bork were briefed by Ruth on past difficulties the office had
encountered in trying to get documents from the White House.

On October 25 Petersen joined the senior staff in a petition to
the District Court for a protective order prohibiting the removal of
any grand jury records from the office except by the staff in the
„ course of. their work. This request was granted by Judge Sirica the
next day; he assigned the General Services Administration the
responsibility for ensuring nonremoval.

During this week and the next, the normal work of the office,
such as interviewing witnesses in the office or in the grand jury and
requesting the FBI to interview witnesses or obtain documents, was
not directly supervised by Petersen, but he was kept informed about

9 The Committee earlier had subpoenaed Presidential tapes for its hearings.

182

major matters. He was briefed on and concurred with the position
WSPF was planning to take in further court proceedings over the
subpoenaed tapes and Bork approved that the proceedings be handled
by WSPF. On October 30 Ruth and Lacovara met with Judge Sirica
and White House Counsel Buzhardt to work out the procedures for
resolving claims of executive privilege which the President might
have with respect to particular passages in the tapes. During the
meeting, Buzhardt informed Sirica that two of the subpoenaed
conversations had not been recorded. Sirica scheduled a public hear-
ing for the next day to examine the reasons for their nonexistence.

On the evening of October 26, President Nixon announced in a
press conference that Acting Attorney General Bork would appoint
a new Special Prosecutor for the Watergate matter, said that he
would not provide any new tapes and documents involving Presi-
dential conversations to the new prosecutor, and indicated that the
prosecutor would not be allowed to seek such material through the
courts. Softening that position, Haig said on a television program
on October 28 that the new Special Prosecutor would not have to
pledge not to seek White House tapes and documents.

Over the weekend Bork began calling possible candidates. On
October 30, Haig called Leon Jaworski of Houston, Texas, who had
served as president of the American Bar Association, and asked him
to accept the position; Jaworski agreed to come to Washington the
next day to discuss it. Jaworski said he would take the job only if he
would be free to bring judicial proceedings if necessary to obtain
tapes and other materials he needed. At their meeting Haig left the
room and a short time later returned and told Jaworski that the
President had agreed that Jaworski would have the right to seek any
materials he felt were necessary to carry out his duties and could go
to court against the President, if necessary, to obtain such materials.
This assurance was then repeated to Bork, White House Counsel
Garment and Buzhardt, Petersen, and Senator William Saxbe, whom
the President had chosen to be the new Attorney General. Jaworski
accepted the job on the basis of these assurances. No change in the
jurisdiction of the Special Prosecutor was discussed.

On November 1, President Nixon announced the nomination of
William Saxbe to be Attorney General. Bork then announced the
appointment of Jaworski. He said that Jaworski would have the same
charter as Cox had had and said that the President had given his per-
sonal assurance that he would not exercise his right to fire the Special
Prosecutor without first obtaining the consensus of the majority and
minority leaders of the House and Senate and the chairmen and rank-
ing members of the House and Senate Judiciary Committees. An order
in accordance with this assurance was issued by Bork the next day.

183

Jaworski was sworn in as Special Prosecutor on November 5.
That afternoon he addressed the entire staff of WSPF, then met with
the senior staff, and then with Cox, Ruth and Lacovara. He began his
duties promptly by meeting the next day with each of the task forced
to review their investigations.

REACTION TO C0X 7 S FIRING AND LEGISLATIVE PROPOSALS
TO ESTABLISH A SPECIAL PROSECUTOR

Cox’s press conference on October 20 had been televised nationally.
Following it, and greatly increasing after the resignation of Richardson
and the firing of Cox and Ruckelshaus were announced, the public
overwhelmingly expressed support for Cox and dismay at President
Nixon’s actions. 10 Many insisted that the President comply with the
court orders, resign, or be impeached. On October 22, NRC News
reported that a scientific sampling poll conducted since the night of
October 20 showed 44 percent of Americans favored impeaching Nixon,
75 percent opposed the dismissal of Cox, 48 percent thought Nixon
should resign, and 54 percent thought Watergate should not be “put
behind us.”

Labor leaders, lawyers, newspapers, and others called for the
President’s resignation or impeachment. Ralph Nader announced
that he would file a lawsuit challenging the firing of Cox. The president
of the American Bar Association, Chesterfield Smith, called on the
courts and the Congress to take appropriate action, including but not
limited to creation of a new Special Prosecutor independent of the
executive branch. Various protest marches and rallies were held.

Hearing of the resignation and firings, the Senators who had been
drawn into the tapes issue also were dismayed. Senator Baker said
he was shocked and said he had not known in advance that President
Nixon was planning to forbid Cox to pursue his court quest. Senator
Ervin said he did not see where his and Baker’s tentative agreement
with the President to accept verified transcripts of taped conver-
sations would have any relation whatever to Cox or his work. Senator
Stennis, the proposed verifier, said that he had not been told that
Cox had rejected the President’s proposal.

On October 22 the Associated Press polled 75 House members
and found 44 for impeachment and 17 undecided. The few House
Democratic leaders who were in AVashington over the holiday weekend
met and tentatively agreed that the House Judiciary Committee

10 The public reaction was reflected in telephone calls, telegrams, and letters
to the White House, the Congress, and other Government agencies. On October 23
Western Union announced that its Washington office had been inundated and
that three high-speed teleprinters had been installed in Virginia to handle the
baoklog. Over 160,000 telegrams had been received. By October 29, over 350,000
telegrams had been sent to Washington on this issue in the preceding nine days.

184

should make a preliminary investigation to determine whether there
were grounds to impeach President Nixon. They also discussed whether
Congress could, constitutionally, create a special prosecutor post in
the executive branch completely independent of presidential control.
They scheduled a meeting with the full leadership for the next day
to discuss these issues further. The Senate Judiciary Committee
scheduled a meeting for October 24 to decide whether to conduct a
hearing on the resignation and firings.

On the morning of October 23, House Republican leaders met
with Presidential Advisor Bryce Harlow and told him that they
would not try to block impeachment proceedings unless the President
made the Watergate tapes available to the District Court. They
also urged appointment of a new Special Prosecutor. When the House
convened at noon that day, Gerald Ford announced, on behalf of the
Republican leaders, that they had no objection to the Democratic
plan to refer impeachment resolutions to the House Judiciary Com-
mittee. Already that morning seven such resolutions had been so
referred.

That same morning Elliot Richardson held a nationally televised
press conference at the Department of Justice. While refusing to charge
President Nixon with failure to respect the claims of the investigative
process, Richardson declared that in going to the Department of
Justice his single most important commitment to helping restore the
integrity of the governmental processes was his pledge to the in-
dependence of the Special Prosecutor and that he could not be faithful
to that commitment and also acquiesce in the curtailment of the
Special Prosecutor’s authority. He said that in Cox’s shoes he would
have done what Cox had done, and he said he thought a new Special
Prosecutor should be appointed.

After the 2 p.m. announcement that the President would turn the
subpoenaed tapes over to Judge Sirica, Haig and Wright held a press
conference at the W 7 hite House to explain the reversal. Haig gave the
President’s reasons for having sought the compromise: polarization
within the body politic, with the threat of impeachment and the
possibility that the President might be removed with no Vice Presi-
dent in office; the intensification and prolongation of debate if the
President appealed the case to the Supreme Court; and suspicion of
disunity by any foreign leader calculating the unity, permanence,
strength, and resilience of this Government. Calling President Nixon’s
proposal that Stennis listen to and report on the tapes “a herculean
effort to resolve the constitutional crisis” and “a fundamental con-
cession in the national interest,” Haig said that when Cox defied the
President by challenging the proposal the President had no alterna-
tive but to dismiss him.

Denying that President Nixon had decided before the previous
week to dismiss Cox because his office was making its investigations

185

broader than the President considered proper, Haig said that “many
of us” were concerned about the political alignment of Cox’s staff,
that it was roaming outside its charter, and there had been occasions,
before the dispute of the previous week, when the President was not
pleased with Cox’s conduct. 11 Haig indicated that the President would
adhere to his plan to put the Watergate case within the institutional
framework of the Department of Justice.

This plan was strongly opposed by many members of Congress. On
October 23, establishment of an independent special prosecutor was
proposed in two House bills, one calling for appointment of the prose-
cutor by majority vote of the House and Senate, the other calling for
appointment by the Chief Judge of the Court of Appeals. In the
Senate two bills calling for appointment of a special prosecutor by
the Chief Judge of the District Court were introduced and referred
to the Judiciary Committee.

Throughout the week House Republican leaders met with Bryce
Harlow and White House lawyers to implore them to persuade Presi-
dent Nixon to name a new special prosecutor in order to forestall the
legislation. Senate Republican leaders urged the same and agreed that
if the President declined they would support (or not oppose) legislation
under which the District Court would do so.

The President’s announcement on October 26 that he would have
Bork appoint a new special prosecutor did not relieve Congressional
pressure for a statutorily created prosecutor. Both the House and
the Senate Judiciary Committees began consideration of such legis-
lation the following week. Cox appeared before the Senate Committee
on October 29, 30 and 31 to describe his former staff, his jurisdiction,
his progress, and his unsuccessful efforts to obtain documents from
the White House. He urged legislation to create an Office of Special
Prosecutor with District Court appointment of the prosecutor, juris-
diction at least as broad as he had had, and specified standing to
invoke judicial process to obtain evidence. The House Judiciary’s
Subcommittee on Criminal Justice began its hearings on October 31
and heard legislators, lawyers, and law professors support various
legislative proposals.

Notwithstanding the announcement on November 1 of Jaworski’s
appointment, both the Senate Judiciary Committee and the House
Judicial Subcommittee on Criminal Justice continued their hearings
on the special prosecutor legislation.

Bork testified before the House Subcommittee on November 5
that any such legislation could be unconstitutional and indicated

11 In his October 20, 1973, press conference, in referring to his telephone call
from Wright on the evening of October 18, Cox said: “It was my impression
that I was being confronted with things which were drawn in such a way that I
could not accept them.”

186

that he might advise the President to veto it. He pointed out that
defendants could go free if the legislation were found unconstitutional
and that witnesses and evidence could be lost in the delays for testing
the law’s constitutionality. He emphasized the Special Prosecutor’s
independence as assured by Haig and by the Congressional “con-
sensus” clause in the new Special Prosecutor charter. Bork was fol-
lowed by Cox who told the Subcommittee that he felt the overriding
concern was continuing the Watergate investigations. Thus, prompt
action on either a statute for District Court appointment of a new
special prosecutor or one for Presidential appointment with approval
of the Senate was more important than which of the two methods was
chosen.

Richardson testified before the Senate Judiciary Committee on
November 6 and 8. He reiterated the practical reasons he had given
in his nomination testimony for establishment of a special prosecutor
only within the executive branch and suggested appointment of a
new prosecutor by President Nixon with confirmation by the Senate.
He also called for a commitment by the President to waive executive
privilege with respect to any Presidential materials the Special
Prosecutor needed and suggested that the Senate might hold up their
confirmation of Saxbe as Attorney General until the President made
such a commitment.

On November 8, Jaworski testified before the House Subcommittee
that passage and legal testing of a statute providing for appointment
of a Special Prosecutor outside the executive branch would delay
the effective work of his office for an extended period of time and
that he had what he considered all of the independence that could
be expected by a Special Prosecutor. He stressed the unqualified
assurances he had received from Haig, after Haig had consulted with
the President, that there would be absolutely no constraints on his
freedom to seek any and all evidence and to invoke judicial process
should he consider it necessary.

The Subcommittee then drafted, and on November 12 referred
to the full Judiciary Committee, a bill under which a Special Prose-
cutor would be appointed by a panel of three judges of the District
Court, and removed only by that panel and only for gross dereliction
of duty, gross impropriety, or physical or mental inability to discharge
his powers and duties. The Special Prosecutor would have all of the
jurisdictional and functional authority that the previous Special
Prosecutors had had, would report annually to the panel, the Attorney
General, and the Congress, and would serve for a term of three years.

On November 14 Bork testified before the Senate Judiciary Com-
mittee, reiterating the practical problems and constitutional questions
that he had voiced before the House Subcommittee as to the special
prosecutor legislation. He emphasized the important safeguard that
the Congressional consensus clause added to the Special Prosecutor’s

independence and explained that, although he had not spoken to the
President personally about it, he considered the President's knowledge
that he was going to include the clause to be the President's personal
assurance and a moral commitment by the President to the Congress
and the American people. Bork explained that, in addition to dismissal,
the consensus requirement related to any attempt to limit the Special
Prosecutor's power . 12

The final witness before the Senate Judiciary Committee was
Jaworski, who testified on November 20. He emphasized the strength
of the assurances he had received both from Haig and from the charter
re-establishing the Prosecution Force. Jaworski explained that he
thought his charter included all of the matters he thought he should
have under his jurisdiction and that if he came upon some matter
which he thought he should investigate which was not included he
would ask the Attorney General for its inclusion. He pointed out that
Bork had told him he was to be completely independent from any
obligation to report to or to seek the advice or counsel of the Attorney
General.

The House Judiciary Committee reported its Subcommittee's
Special Prosecutor bill to the full House on November 26, with an
additional provision that the Special Prosecutor report at least
monthly, to the chairman and ranking minority member of the Com-
mittee, any information pertinent to whether impeachable offenses
had been committed b}^ Richard Nixon. The Senate Judiciary Com-
mittee, divided equally, reported two bills to the full Senate on Dec-
ember 3, one similar to the House bill and the other providing for
appointment of a Special Prosecutor by the Attorney General after
consultation with Senate leaders and prohibiting removal of the
Prosecutor without the consensus of certain congressional leaders.
None of the bills was enacted into law.

A further opportunity for the Senate to consider the independence
and authority granted to the Special Prosecutor under the charter
prepared by Bork was afforded to the Senate Judiciary Committee
in the November 1973 hearings on the nomination of Saxbe to be
Attorney General. Saxbe pledged that Jaworski would operate com-
pletely freely and Saxbe would see him only at Jaworski's request,
that he would give Jaworski any reasonable assistance he could
furnish from the Justice Department, and that he would inform the
Committee of any White House attempt to limit the jurisdiction or to

12 This aspect was not clear in the charter. On November 19 Bork issued an
amendment specifying that the jurisdiction of the Special Prosecutor would not
be limited without the consensus of the designated members of Congress. This
order and a clarifying letter from Bork are included in Appendix J. For a fuller
explanation of the assurance, see Borins testimony before the Senate Judiciary
Committee on December 13, 1973 (93d Congress, 1st Session, Hearings on the
Nomination of William Saxbe to be Attorney General, pp. 85-88).

188

tamper with the charter of the Special Prosecutor. Jaworski promised
to bring any impasse to the attention of the Congressional “Committee
of Eight” designated in his charter and the Judiciary Committees of
the House and Senate.

CIVIL SUIT AGAINST COX'S DISMISSAL

On October 23 Ralph Nader and other co-plaintiffs filed a civil
suit against the firing of Archibald Cox with Acting Attorney General
Bork named as defendant. On October 29 Nader filed a motion to have
Cox reinstated as the Special Prosecutor and to have the Watergate
investigations halted until Cox reassumed control. On November 9,
Judge Gesell dismissed Nader as a plaintiff, stating that Nader clearly
lacked the legal standing to bring such a suit, declined to order Cox
reinstated, noting that Cox had not entered the case or otherwise
sought reinstatement, and declined to halt the investigations, noting
that a new Special Prosecutor had been sworn in and that the public
interest would not be served by placing restrictions on his investigations.

On November 14 Gesell found that the firing of Cox, in the absence
of a finding of extraordinary impropriety as specified in the regulation
establishing the Office of Watergate Special Prosecutor, was illegal,
that that regulation barred the total abolition of the Special Prosecu-
tor’s office without the Special Prosecutor’s consent, and that even if
the regulation did not bar total abolition without that consent, its
revocation under the circumstances presented in this case was arbi-
trary and unreasonable and was therefore illegal. Gesell called the
abolition and reinstatement of the office under a virtually identical
regulation “simply a ruse to permit the discharge of Mr. Cox without
otherwise affecting the office of the Special Prosecutor.” As to the
legality of Leon Jaworski’s service, Gesell held that Bork’s actions
in appointing a new Special Prosecutor were not themselves illegal
since Cox’s decision not to seek reinstatement necessitated the prompt
appointment of a successor to carry on the important work in which
Cox had been engaged.

189

591-439 0 - 75 - 13

Appendix C:

Relations With the Office of the United States
Attorney for the District of Columbia

The original Watergate investigation was conducted under the
general supervision of the Justice Department and Harold Titus,
U.S. Attorney for the District of Columbia. The Assistant U.S.
Attorneys who handled the investigation on a day-to-day basis were
Earl Silbert (Principal Assistant U.S. Attorney), Seymour Glanzer
(head of the U.S. Attorney’s Fraud Section), and Donald Campbell.
Their investigation resulted in the indictment on September 15, 1972,
of seven men in connection with the burglary and bugging of the
Democratic National Committee headquarters at the Watergate. By
late January 1973, the seven defendants had been found guilty —
five after pleas of guilty and two following a jury trial. All except
McCord were sentenced to provisional prison terms on March 23.

After these convictions, the Assistant U.S. Attorneys continued
their investigation during the spring of 1973, spurred on by charges
by one of the convicted men that there had been a widepsread cover-
up, involving senior White House officials among others, to conceal
the involvement of CRP officials in the planning of the break-in.
These charges, together with continuing revelations by the Wash-
ington Post and other newspapers and the April 30 departure from the
Nixon Administration of Ehrlichman, Haldeman, Kleindienst, and
Dean, created mounting pressure for the appointment of an independ-
ent prosecutor to take over the Watergate investigations. 1

On May 25, Attorney General Elliot Richardson appointed
Archibald Cox as Special Prosecutor to investigate “Watergate”
matters. Cox was given assurances of complete independence and
within a week, Richardson issued a directive to all Justice Department
personnel:

Effective immediately, all Divisions, Offices, Services, and
Bureaus of the Department, including the Federal Bureau of
Investigation and all United States Attorneys, will report to and
cooperate with the Special Prosecutor on all matters within his
jurisdiction.

While those who had been in charge of the original investigation
were notified in the directive that “work on pending investigations or

1 The Senate had already appointed a Select Committee to conduct its own
investigation of the Watergate scandals.

190

prosecutions shall continue for the present without interruption,” all
those previously engaged in conducting the investigations were
directed “to make prompt written reports to the Special Prosecutor
of all allegations and pending investigations or prosecutions falling
within the jurisdiction of the Special Prosecutor.”

Their replacement by a Special Prosecutor could not help but
rankle the U.S. Attorney and his staff, as it seemed to cast doubts on
their integrity and to suggest that their investigation had been less
than thorough. 2 Assistant Attorney General Henry Petersen, head of
the Justice Department's Criminal Division, commented forcefully on
this point during his testimony before the Senate Select Committee a
few months later:

I resent the appointment of a Special Prosecutor. Damn it,

1 think it is a reflection on me and the Department of Justice. We
could have broken that case wide open and we would have done it
in the most difficult circumstances. And do you know what hap-
pened. That case was snatched out from under us when we had it
90-percent completed with a recognition of the Senate of the United
States that we can't trust those guys down there, and we would
have made that case and maybe you would have made it different,
but I would have made it my way and Silbert would have made it
his way and we would have convicted those people and immunized
them and we would have gotten a breakthrough. I am not minimiz-
ing what you have done or the press or anyone else, but the De-
partment of Justice had that case going and it was snatched away
from us, and I don't think it fair to criticize us because at that
point we didn’t have the evidence to go forward. 3 *

2 The Special Prosecutor was alert to the possibility that his predecessors
might be viewed as scapegoats. In a later letter to the Senate Judiciary Committee
which was considering the nomination of Silbert to be U.S. Attorney for the
District of Columbia, he expressed the view that Silbert and his colleagues had
acted with fairness and professionalism during their handling of the investigation.

3 Hearings before the Senate Select Committee on Presidential Campaign
Activities, 93d Cong., 1st Sess., Book 9, Testimony of Henry E. Petersen, Assistant
Attorney General, Criminal Division, U.S. Department of Justice, Aug. 7, 1973, p.
3639.

The Special Prosecutor’s staff found that far from being “90-percent com-
pleted, 5 ’ 9 months of additional work was needed before indictments in the Water-
gate cover-up case. When WSPF was formed, only 2 months had elapsed since
James McCord’s letter to Judge Sirica and the complex nature of the case re-
quired much more investigative work by the prosecutors. In fairness to Petersen,
it should be noted that much time was spent in obtaining and analyzing White
House documents and tapes, evidence which had been unavailable to the original
prosecutors.

The decision of the Senate to conduct its own investigation also angered the
U.S. Attorneys. On May 15, U.S. Attorney Titus wrote to Attorney General-
designate Richardson, complaining that the timing of the Committee’s pending
hearings confronted the U.S. Attorney’s office with the possible “insuperable”
obstacle of prejudicial pretrial publicity. Although expressing sympathy for the
prosecutors’ concerns, Richardson explained that there was little he could do
until his appointment was confirmed other than to discuss the problem at the
earliest possible opportunity with the Chairman of the Committee and the yet-to-
be appointed Special Prosecutor.

191

Cox’s first act following his appointment as Special Prosecutor on
May 25 was to seek the continued assistance of Silbert, Glanzer and
Campbell on the Watergate case, although he had reached no decision
regarding their permanent status with the Special Prosecutor’s office.
Cox’s primary interests at the time were to preserve the integrity
and continuity of the investigation, familiarize himself with the work
already performed, and establish his own authority to make decisions
concerning the matters under his jurisdiction.

On May 24, even before assuming office, Cox had made these
points clear in a letter to U.S. Attorney Titus. Among other things,
Cox urged that there be no break or delay in the investigation.
He wrote :

The public interest requires you as honorable and responsible
public officials to carry on while I am familiarizing myself with all
that has been done; and at that time we can see what is most ap-
propriate for the future. As soon as I have taken office in the
Department, I would of course expect to be consulted before any
decisions were made.

In an early meeting with Titus, Cox went over many of the points
covered in his May 24 letter, emphasizing the need to refrain from any
public comment on the investigation or, if any public comment were
appropriate, that it come from the Special Prosecutor himself. 4 What
particularly concerned Cox at this juncture were press reports specu-
lating on possible prosecutorial theories regarding the Watergate
cover-up. Cox emphasized to Titus that all decisions about case
theories, decisions to prosecute or acceptance of guilty pleas “will be
made by me,” and instructed Titus and his staff to “refrain from any
kind of statement or comment about any aspect” of the case.

On May 25, however, the Washington Post reported an announce-
ment by Titus that the Watergate prosecutors had reached a break-
through, that “an unidentified member of the criminal conspiracy
to cover up the Watergate affair will plead guilty and testify against
others involved,” and predicted that there would be “comprehensive
indictments within 60-90 days.” Titus was also quoted as having said
that his assistants had developed “and outlined before the grand jury
a comprehensive and coherent theory of prosecution.” The article
went on to quote “sources” familiar with the investigation who de-
fended the work of the original Watergate prosecutors and pointed
out that “the withdrawal of the three prosecutors from the case after
11 months of investigation would seriously delay indictments.”
Finally, the article stated that most of the work on the cover-up case

4 Cox’s handwritten notes taken during the meeting show this concern:
“Press stories (a) damaging to professionalism and fairness of investigation —
prejudice fair trial — prejudice me. (b) pledge of the tightest security; no discus-
sions of any kind whatsoever with any member of the press: no state’s ‘state-
ments’.”

192

was complete, and U.S. Attorney Titus hinted that negotiations were
underway “toward getting others involved in the Watergate cover-up
to plead guilty.”

These statements and unattributed comments in support of the
original prosecutors, coming at the outset of Cox’s own investigation,
suggested an attempt to force Cox to retain the original prosecutors
and to acknowledge their theory of the case. These statements may
also have been the basis for Petersen’s later claim that the investiga-
tion was “90-percent completed” when Cox took over.

Also, on May 25, the day Cox became Special Prosecutor, he met
with Silbert to emphasize that “no significant action of any kind should
be taken without alerting me and giving me a chance to exercise my
judgment. Specifially, there should be no further press releases about
any aspect of these cases.” 5 Four days later, on May 29, Silbert sent
Cox a memorandum suggesting areas in which the Special Prosecutor
could be of significant aid to the U.S. Attorneys in the conduct of the
Watergate investigation: these included assistance with problems
arising out of the upcoming Senate hearings; the need to secure
documents from the White House; and the task of digesting grand
jury testimony. Shortly thereafter, Cox assigned two members of
his fledgling staff to work with the U.S. Attorneys on these and
other problems.

On June 7, Silbert and his team wrote a status memorandum to
Cox. The 87-page document summarized the evidence to date both in
the cover-up matter and in the investigation of the Plumbers’ break-in
at the office of Daniel Ellsberg’s psychiatrist in California. The
summary also included a status report as to many possibly involved
individuals and reported on informal and formal immunities that had
been granted some witnesses. At the same time, Silbert and Cox
had a disagreement over whether or not the original prosecutors
could send investigative requests directly to the FBI. Cox cancelled
such a request from Silbert to the Bureau and directed that Silbert,
Glanzer and Campbell move to the Special Prosecutor’s offices with
their files. In a letter to Titus, Cox explained his order on the basis of
a “firm conviction that such a move is essential if their work with
members of my staff is to go forward conveniently and effectively.”

Throughout the remaining part of June, Cox’s staff became familiar
with the cover-up investigation, and inevitably the nature of the
Special Prosecutor’s charter required that Cox’s own team take over
the matter. On June 29, 1973, in a five-page letter to Cox, the three
original prosecutors asked to be relieved of Watergate-related re-
sponsibilities and to return to the U.S. Attorney’s office.

5 Memo from Cox to Titus dated May 25, 1973, relaying Cox’s comments to
Silbert that morning and requesting Titus to follow the same instructions.

193

In reply, Cox spoke kindly of the three men :

You acted in a highly creditable fashion in acceding to my
request that you put the interests of the Watergate investigation
ahead of your own wishes and give us the benefit of your know-
ledge and experience during a period of transition.

Perhaps I may add in closing that I realize this has not been an
easy time for you. I am aware of various criticisms of your earlier
conduct of the investigation and prosecution of seven defendants.
Lawyers often differ on questions of judgment, and there are
points on which my judgment might have varied from yours.
Thus far in the investigation, however, none of us has seen any-
thing to show that you did not pursue your professional duties
according to your honest judgment and in complete good faith.

By July 1, a month after Cox had commenced his assignment, the
Watergate investigation was entirely in the hands of the new Special
Prosecutor.

In the ensuing 2 years, Silbert and his staff frequently made them-
selves available for consultation regarding various aspects of their
earlier Watergate inquiry and other investigations; there were a
number of referrals of investigative matters between the two offices;
and the U.S. Attorney's office provided assistance to the Special Pros-
ecutor's office when new grand juries were empanelled and when it
became necessary for WSPF to obtain office space and support
facilities in the courthouse during the trials it conducted. Thus,
although the U.S. Attorney's office assumed a minor role in the Water-
gate investigation after the early summer of 1973, it provided valuable
assistance during the remainder of WSPF's tenure.

194

Appendix D:

Relations With
the Attorney General

INTRODUCTION

Under the regulations establishing the Office of the Watergate
Special Prosecution Force, 1 the Director of the Office is the Special
Prosecutor appointed by the Attorney General. The regulations
provide, in effect, that the Special Prosecutor is to exercise the powers
of the Attorney General in all matters under his jurisdiction and is
to operate without direction from the Attorney General. The regula-
tions also provide that there may be such consultation between the
Special Prosecutor and the Attorney General as the Special Prosecutor
deems appropriate. 2

There has been, however, no impenetrable insulation between
the Attorneys General and the three Special Prosecutors who have
served since May 1973. This was particularly true during the months
immediately following the establishment of the office when there
were a number of contacts between Special Prosecutor Cox and At-
torney General Richardson and their respective staffs. These contacts
were part of a continuing process of clarifying questions about the
scope of the Prosecutor’s jurisdiction, discussing Government policy on
especially sensitive matters, arranging for the exercise of powers
which only the Attorney General could exercise, and developing
mechanisms for accommodation and cooperation in areas of overlapping
interest between the Special Prosecutor and the regular operating
divisions of the Department of Justice.

THE SCOPE OF THE

SPECIAL PROSECUTOR'S CHARTER

The early contacts between Richardson and Cox after Cox’s
appointment focused upon questions about the proper line of demarca-

1 28 C.F.R. § 0.37 et seq .

2 See generally United States v. Nixon , 418 U.S. 683 (1974).

195

tion between the jurisdiction of the Special Prosecutor’s office and
that of the Criminal Division. Although it was clear that the Special
Prosecutor superseded the United States Attorney and the Assistant
Attorney General in charge of the Criminal Division in such matters
as the Watergate cover-up investigation, transitional problems re-
mained. One of the most important of these was the extent to which
cooperation and assistance would be available from the prosecutors
previously involved in the investigation. 3 In addition, there were
possibilities that investigations by the Special Prosecutor’s office
into illegal corporate political activity might overlap with similar
investigations normally under the jurisdiction of the Elections Unit
in the Fraud Section of the Criminal Division. The resolution of
this problem involved assertion of primary jurisdiction by the Special
Prosecutor, with the Fraud Section continuing with a number of
General Accounting Office referrals where investigation was well
underway. As to these, the Special Prosecutor retained supervisory
authority.

The first sharply-defined question about the Special Prosecutor’s
jurisdiction arose on July 3, 1973, when an article in the Los Angeles
Times claimed that the Special Prosecutor had begun a preliminary
investigation into the expenditures of public funds for President
Nixon’s home in San Clemente, California. Attorney General Richard-
son, responding to an inquiry from the White House, contacted the
Special Prosecutor to express his doubt that such an investigation fell
within the Special Prosecutor's jurisdiction. Special Prosecutor Cox
explained that the story was inaccurate because in fact there was no
such investigation under way, but he objected to an interpretation of
his charter that excluded from his jurisdiction one kind of allegation
involving the President. It was agreed that the Special Prosecutor
would issue a public announcement stating that the Times story was
unfounded.

A week later, the Attorney General and the Special Prosecutor
met to discuss whether the Justice Department should screen factual
allegations to ascertain whether they were substantial enough to war-
rant referral to the Special Prosecutor’s Office. The Special Prose-
cutor objected to any procedure that would have the Criminal
Division do such a screening; instead it was agreed that all allegations
apparently falling within the jurisdiction of the Special Prosecutor
would be referred immediately to him for his determination whether
they fell within his sphere of responsibility and, even if so, whether
they should be remanded to the Criminal Division for investigation
and report. The latter category would include those allegations which
were insufficiently substantial to warrant the Special Prosecutor’s use

3 Appendix C details the WSPF relations with the U.S. Attorney’s office in
Washington, D.C.

m

of the office’s limited resources or which related to investigations
pending in the Criminal Division.

It was also agreed that the Criminal Division and the Special
Prosecutor’s office would keep each other informed of significant de-
velopments in matters handled by either of them where the develop-
ments might be of mutual interest, except where the Special Prosecutor
determined that such a disclosure on his part would be inconsistent
with his responsibilities. In a related matter the Special Prosecutor
and the Attorney General agreed that, unless the Special Prosecutor
determined in a specific case that it was not appropriate, he would
inform the Attorney General confidentially of allegations of impro-
priety by any current employee of the Department of Justice as soon
as such charges were brought to his attention. This arrangement
reflected the recognition that the Attorney General had a legitimate
interest in knowing promptly that a Justice Department official was
under suspicion.

Another point of discussion involving the scope of the Special
Prosecutor’s charter arose in late July 1973 as a result of a request from
the Special Prosecutor’s office for an opportunity to interview Secret
Service agents detailed to the White House. Attorney General
Richardson stated that J. Fred Buzhardt, Special Counsel to the
President, had objected to any inquiry by the Special Prosecutor’s
office into personnel assignments at the White House. Also raised at
that time was the White House objection to the Special Prosecutor’s
request to interview Tom Charles Huston, the author of a secret 1970
White House plan to improve coordination among the Federal do-
mestic intelligence agencies and to permit them to use illegal methods
in gathering information. The Attorney General stated that the White
House viewed this as part of an unauthorized and excessive in-
vestigation of all Federal intelligence activities during the Nixon
Administration.

In response, the Special Prosecutor stated that there was no
investigation of Secret Service personnel problems. However, if it
should appear that any improper activities were carried out by Secret
Service personnel acting on White House detail, Cox took the position
that those activities fell within the branch of jurisdiction authorizing
the investigation of allegations of wrongdoing by White House per-
sonnel.

With respect to Huston, the Special Prosecutor responded that
such an interview was considered part of an investigation falling
within the jurisdiction of the office. He informed Richardson that
there was no comprehensive investigation of all intelligence agencies
but that, in connection with an investigation of particular surveillance
practices, various Federal agencies had been asked to describe their
policies on electronic surveillance.

W7

With respect to charges that Cox was exceeding his jurisdiction
generally, WSPF told Richardson that he could assure the White
House that the Special Prosecutor had sufficient matters clearly within
his jurisdiction so that it was not necessary to force his way into mat-
ters beyond his delegation.

Avowed concerns by the White House and the Attorney General
about “national security” surveillance policies continued to be a
subject of discussion between Richardson and Cox in early August.
Cox was interested in exploring certain surveillance policies of the
Secret Service, but the Secret Service, on White House instructions,
had declined to respond to the inquiries. At the Attorney General's
suggestion the Special Prosecutor resolved the impasse by dealing
with the General Counsel of the Treasury Department.

At a meeting on August 15, Richardson again raised the problems
that had been encountered because of the general breadth of the
Special Prosecutor's jurisdiction. He suggested that it might be de-
sirable to rewrite the original charter to be more specific and explained
that there were serious worries at the White House that the Special
Prosecutor was exceeding the boundaries originally contemplated for
the types of investigations that he would undertake. The original
guidelines specifying the jurisdiction of the Special Prosecutor had
been hurriedly prepared in May 1973, and the Special Prosecutor and
the Attorney General both understood that there were fringe areas in
the general grants of jurisdiction that might require some accommoda-
tion or interpretation in particular cases. Richardson expressed his
understanding of the original mandate as including, for example, the
activities of the White House “plumbers,” but as not extending more
broadly to other surreptitious surveillance activities that might have
had some nexus with the White House, including the alleged wiretaps
on former White House and National Security Council staff members
and newspaper reporters.

Cox said that he regarded such an investigation as within the
natural scope of the language or spirit of his mandate. He expressed
the view, however, that because of some arguable uncertainties re-
garding the lawfulness of electronic surveillance in “national security”
cases, there might be grounds for declining to prosecute regular law
enforcement officers who had conducted surveillances formally ap-
proved by the Attorney General and bearing some palpable nexus to
legitimate defense secrets. He suggested that the relevant factors in
determining criminality would include (1) the regularized nature of
the procedures and personnel involved; (2) the occurrence or non-
occurrence of a physical trespass; and (3) the existence and basis of a
good-faith belief that national security was directly involved. The
parties agreed to think further about the jurisdictional issues and the
substantive elements not yet resolved.

19a

At a later meeting in August, the Attorney General gave the Special
Prosecutor a draft of guidelines which, through the use of a screening
mechanism, would have narrowed the original basis for jurisdiction
over all White House staff members and Presidential appointees. The
draft also restricted Cox's authority to the “ ‘plumbers’ operations if
they constitute the commission of criminal offenses.” Richardson also
suggested the inclusion of the factors that the Special Prosecutor had
enumerated as the basis for judging possible criminality; and he also
proposed that the new guidelines, as merely interpretive of Cox’s
charter, need not be published. In addition, in order to alleviate the
concerns of the White House about possible unintended and unfore-
seen damage to national security operations, he proposed that the
Special Prosecutor should consider accepting a special consultant on
national security matters. The consultant, he suggested, could serve
as an intermediary between the Special Prosecutor’s office and the
intelligence agencies to advise the Special Prosecutor when he ap-
proached sensitive matters and to facilitate the acquisition of informa-
tion. The Attorney General suggested a specific former CIA official as
a candidate for such a position.

Cox objected to the limitations that Richardson proposed and
insisted that they would have to be published, if ever issued, since
any such modifications in his charter would reflect a substantial
alteration in the original, public mandate. He said also that, while
the idea of a particularly knowledgeable intelligence expert might
have some value, he would consider the idea only if it was clear
that such a consultant was accountable solely to him and had no
authority to filter information before it came to him.

The Attorney General soon dropped both of these proposals and
the parties simply decided that they would notify each other of any
positions either the Special Prosecutor’s Office or the Department of
Justice proposed to take on national security issues, and they would
attempt to resolve any conflicts at the staff level.

In early September, the Attorney General and the Special Prose-
cutor reviewed the jurisdictional question once again. Cox stated that
upon review of pending investigations in his office he saw no problems
of questionable jurisdiction. He stated his additional belief that under
the charter there could be temporal boundaries on the matters that
fell within his responsibility. Specifically, he did not regard his jurisdic-
tion as extending to matters occurring after his appointment in 1973
except to the extent that they interfered with or obstructed his
investigations or were part of a plan or course of conduct beginning
at an earlier time. This limitation was seen as clearly warranted
because an open-ended time frame for the charter would have given
the Special Prosecutor’s office the role of continuing to monitor
Government conduct for an indefinite period. That kind of breadth

199

had not been the understanding of the limited purpose of selecting a
Special Prosecutor to deal with specific problems or types of problems
about which serious allegations had surfaced as of May 1973.

In addition, Cox told Richardson that almost all the matters
currently under investigation covered a time period after January 1,
1971. They agreed that as a statement of attitude on Cox’s part,
this date could be regarded as a general backward limit of acts that
WSPF was investigating except as to any major allegations about
matters within the prime jurisdiction of the office and except as to
possible criminal acts involving general characteristics of wrongdoing
that were continued after January 1971. As to any borderline matters
preceding January 1971, although they would fall within the broad
general language of the WSPF charter, Cox said that he would secure a
specific delegation from the Attorney General so that no valid legal
issues could be raised. It was also agreed that the Special Prosecutor,
if so requested by the Attorney General, would consider assuming
jurisdiction over matters that would normally be beyond his authority.

The Special Prosecutor insisted, however, that he could not agree
to any firm jurisdictional limitation on the kinds of cases ostensibly
covered by the terms of his original charter without violating assur-
ances he had given the Senate Judiciary Committee when he was
initially appointed. For this reason, he explained that any efforts
to modify the substantive scope of his ji risdiction would have to be
raised with the Committee.

One specific area illustrates the way these arrangements were
implemented. On September 21, Cox called Richardson to say that
his investigations of illegal political activities had uncovered two
situations occurring before January 1971 that were closely related to
the 1972 campaign investigations: one was the 1970 so-called “Town-
house Operation” run by the White House to raise and channel funds
to Congressional candidates sympathetic to the President, and the
other was a 1968 contribution to the Presidential campaign of Senator
Hubert Humphrey by Dwayne Andreas, whose activities were under
scrutiny because a 1972 campaign contribution by him eventually
had been deposited in the bank account of one of the Watergate
burglars. As happened with all such requests from WSPF, the Attorney
General agreed that the Special Prosecutor should proceed with both
of those investigations.

EXECUTIVE PRIVILEGE

Another source of contact between the Attorney General and
the Special Prosecutor involved the delicate and complex question
of “executive privilege.” From the earliest days, Cox experienced
difficulties in obtaining documentary material or testimony from
the White House. To the extent that a justification was given for

m

these refusals, the most frequent explanation was a claim of “executive
privilege.” Despite the irony of invoking such a privilege against
an official of the Executive Branch, the White House adhered to
this claim through two rounds of unsuccessful litigation which cul-
minated in the July 24, 1974, decision of a unanimous Supreme
Court directing President Nixon to turn over to the Special Prosecutor
several dozen subpoenaed White House tapes.

During the earliest months of the Special Prosecutor’s office, the
issue of executive privilege was one of joint concern to Richardson
and to Cox. On the one hand, Cox understood that he had an obliga-
tion to pursue evidence of crime which might be included in the papers
of the President. On the other hand, he recognized that he was an
officer of the Department of Justice and that the Department of Jus-
tice had for many years been asserting and defending claims of execu-
tive privilege and was then involved in litigating such claims in the
Federal courts. On a number of occasions, Richardson and Cox met
to discuss ways of accommodating their respective responsibilities
with the least damage to the positions and responsibilities of the other.

As an outgrowth of these discussions, Cox determined that it
would be sufficient for his purposes to confine his arguments against
executive privilege to instances where evidence was needed for a
grand jury investigation or for a criminal trial. This allowed the
Department of Justice to continue taking its positions asserting exec-
utive privilege in civil litigation. This accommodation avoided any
direct confrontation between the Special Prosecutor’s office, techni-
cally a branch of the Justice Department, and the regular litigating
divisions of that Department.

One continuing source of tension on this subject was the Special
Prosecutor’s request for access to certain White House papers related
to the “milk fund” investigation. One of the investigations in the
Special Prosecutor’s office related to possible criminal activities in
connection with the Administration’s 1971 decision to increase the
price support payments for milk. At the same time, there was pending
in the United States District Court for the District of Columbia a
civil suit, Nader v. Butz , C.A. 418-72, which challenged the legality
of that increase. Among the plaintiff’s allegations were contentions
that the price support increase had been directed for political reasons
rather than for the reasons made relevant by the applicable statute.
In connection with that litigation, the plaintiffs had subpoenaed
various White House documents and a claim of executive privilege
had been interposed. Although the documents were made available
to the Civil Division of the Department of Justice in asserting and
defending the claim of executive privilege, the White House refused
to allow the Special Prosecutor’s office access to those same documents.
This distinction between the Civil Division and the Special Prose-
cutor’s office — both units of the Department of Justice — pursuant to

m

which one was relied upon to assert executive privilege, while that
same claim was invoked against the other, was an important example
of the White House policy of non-cooperation with the Special Prose-
cutor’s investigations.

Cox met several times on this point with Richardson who indicated
that he was attempting to convince the White House legal staff that
their position was untenable. On several occasions, Cox was told that
the White House had not finally turned down his requests but that
special reviews were being conducted. On August 13, Cox wrote to
Richardson formally requesting access to the “Milk Documents”
which the White House had given to the Civil Division for the Nader
v. Butz suit. He explained that these were important to the criminal
investigation and that, under the standing arrangement, the Special
Prosecutor’s office would not object to the Justice Department claims
of executive privilege in civil matters but the Special Prosecutor would
challenge such claims in criminal proceedings. Two days later Richard-
son told Cox that Buzhardt had instructed him not to turn over the
milk papers and that Richardson had asked him to reconsider that
order. Richardson asked Cox to delay pressing the issue to give him a
chance to obtain reversal of it. It was not until November 1973, after
Cox had been fired, that these papers were actually made available.

NATIONAL SECURITY

The difficult concept of “national security” was the subject of
intermittent and inconclusive discussions between the various At-
torneys General and Special Prosecutors. Although later evidence
documented that much of the purported concern raised by the White
House about “national security” was part of a plan to use that vague
concept to frustrate legitimate investigations, the various Attorneys
General and Special Prosecutors recognized that, as responsible public
officials, they could not ignore legitimate requirements, both legal and
practical, that sensitive defense and intelligence information be pro-
tected. A number of these meetings involved discussions (referred to
above) distinguishing possible criminal activities conducted in the
name of national security from those that could not or should not be
prosecuted. There were also efforts to ascertain with some precision
what the Department of Justice had offically sanctioned and what it
had not purported to allow in the name of “national security.” These
discussions eventually spanned the tenures of all three Special Prosecu-
tors and never produced a comprehensive statement from the Depart-
ment as to all prior practices or as to the full scope of past or current
policies concerning “national security” operations.

Finally, there were discussions about the difficulties that would
emerge in prosecutions where either the government or the defense
attorneys might need to present highly sensitive defense information in

m

public proceedings. It was understood from the outset that the Special
Prosecutor would attempt to frame the legal theories of prosecution
and the presentation of evidence in order to obviate the need for either
the Government or the defense to utilize any such information. At
various points both Special Prosecutors Cox and Jaworski were ad-
vised of such potential problems by either the Attorney General or
the White House. When classified information was needed for trial at
later dates, WSPF adopted the usual Federal executive practice of
asking the classifying agency to declassify any document needed for
trial. Although no insuperable problems ever, in fact, occurred, Cox
recognized in the early months of WSPF's existence that legitimate
national security concerns might force the voluntary dismissal of a
case if classified material necessary either to the prosecution or defense
could not legitimately be declassified, or even made available to a
judge for decision about possible disclosure to the defense at trial.

ATTORNEY GENERAI/S POWERS

The final major subject of contacts between the Attorney General
and the Special Prosecutor involved matters where action by the
Attorney General personally was necessary. For example, under the
“use immunity” statute, 18 U.S.C. § 6001 et seq., applications for
court orders granting immunity in the face of a claim of the privilege
against self-incrimination must be approved by the Attorney General,
by his Deputy, or by a designated Assistant Attorney General. Al-
though the Special Prosecutor had been delegated powers comparable
to those of the Attorney General and an Assistant Attorney General,
there was concern that the express reference in the statutes to specific
officials who are selected by the President and confirmed by the
Senate might not properly be extended to an official like the Special
Prosecutor who was appointed by the Attorney General. This problem
was specifically acute since the Justice Department at that time was
attempting to convince the Supreme Court in the case of United States
v. Giordano, 416 U.S. 505 (1974), that similar references in the Federal
wiretap statute should be read to allow other Justice Department
officials to exercise certain powers. (The Supreme Court subsequently
ruled unanimously that only the officials referred to in that statute
could validly act.) For this reason, a procedure was established under
which the Special Prosecutor requested that the Attorney General
approve applications for immunity, and the official certification of
approval was made by the Attorney General. No problems ever were
encountered in the implementation of this practice. 4

4 In a related arrangement, the Special Prosecutor’s office and the Criminal
Division “Immunity Unit” regularly consulted about proposed immunity orders
to insure that neither the Justice Department’s operating divisions nor the Special
Prosecutor’s office unwittingly granted immunity to a person under active investi-
gation by the other.

203

Access to tax returns also required involvement of the Attorney
General since under the Internal Revenue Code 5 and the imple-
menting executive order, only the Attorney General, Deputy Attorney
General, an Assistant Attorney General or a United States Attorney —
officials appointed by the President and confirmed by the Senate —
could apply for access to tax returns as part of the investigative
process. Early in the Special Prosecutor's term, he requested that the
Secretary of the Treasury arrange to amend the operative executive
order to authorize the Special Prosecutor to obtain access to tax
returns directly. This request was held up for several months, and
on several occasions Richardson and Cox met to discuss how the
Attorney General might resolve this issue, inasmuch as the White
House apparently would not process the amendment to the executive
order. No resolution was achieved prior to the resignation of Richard-
son and the dismissal of Cox. After the dismissal, Special Prosecutor
Jaworski continued to pursue this issue and ultimately decided to
submit requests for tax information through the Attorney General
who forwarded them as a matter of course to the Internal Revenue
Service. An amendment to the Treasury Regulations, or modification
of the executive order, was not necessary, and in every instance the
Special Prosecutor received the requested materials without delays.

CONCLUSION

Following the dismissal of Special Prosecutor Cox on October 20,
1973, the nature and number of contacts between the new Special
Prosecutors and new Attorneys General declined sharply for several
reasons. One was the uniqueness of the pre-existing relationship
between Attorney General Richardson and Special Prosecutor Cox,
which enabled them to deal with each other regularly and easily.
In addition, after the discussions in the formative months of the
Special Prosecutor's office, most of the structural issues had been re-
solved, and questions about the contours of jurisdiction were no
longer as significant. Most importantly, the public and congressional
reaction to the dismissal of Cox, and to the White House effort to
override his independence and to undercut his judgment, would have
made it very difficult as a political or policy matter for subsequent
Attorneys General to assume any significant role in directly ques-
tioning the Special Prosecutors' judgments or even raising issues
about them.

5 26 U.S.C. 6103(a); 26 C.F.R. § 301. 6103(a)-! (g).

204

Appendix E:

Relations With
Congressional Committees

INTRODUCTION

This Appendix describes the continuing relationships that WSPF
developed with the Senate Select Committee on Presidential Campaign
Activities, and the Senate and House Committees on the Judiciary.
The relationship with the Senate Select Committee (SSC) arose from
mutual needs to share information and coordinate often parallel
investigations. WSPF’s dealings with the House and Senate Judiciary
Committees grew from the confirmation hearings in which Richardson
pledged to establish WSPF. Later, after Cox’s firing the Committee’s
consideration of various legislative proposals for a special prosecutor
resulted in the Congressional protection of WSPF’s existence and inde-
pendence after its reestablishment. 1

In addition to these ongoing relationships, WSPF had intermittent
contact with the Congressional committees that conducted inquiries on
matters related to WSPF’s work. Beginning in late May 1973, a
WSPF staff attorney was assigned to identify and acquire transcripts
of Congressional hearings on matters of interest to the Special Prose-
cutor. These eventually included hearings from the following: (1) the
Senate Select Committee on Presidential Campaign Activities;
(2) the Senate Appropriations Subcommittee on Intelligence Opera-
tions (regarding CIA assistance to the Plumbers and involvement in
the burglary of Ellsberg’s psychiatrist’s office and in the Watergate
cover-up) ; (3) the Senate Appropriations Subcommittee on Housing
and Urban Development, Space, Science, Veterans and other inde-
pendent executive agencies (regarding the SEC investigation into the
activities of Robert Vesco) ; (4) the Senate Armed Services Committee

1 Cooperation between WSPF and the House Judiciary Committee’s impeach-
ment inquiry staff is described in Chapter 4 of this Report. Appendix B discusses
the consideration in 1973 of proposals for a legislatively-created special prosecutor.
In July 1975, Special Prosecutor Ruth and former Special Prosecutor Jaworski
testified before the Senate Committee on Government Operations to oppose a bill
that would create, in effect, a permanent special prosecutor.

205

591-439 0 - 75 - 14

(regarding CIA involvement in domestic intelligence activities);
(5) the Senate Commerce Committee (confirmation of Egil Krogh,
former head of the Plumbers) ; (6) the Senate Foreign Relations Com-
mittee (confirmation of Richard Helms, former head of the CIA);
(7) the Senate Judiciary Committee (regarding ITT and the Richard
Kleindienst confirmation hearings and regarding the Watergate
cover-up in the L. Patrick Gray confirmation hearings) ; (8) the House
Commerce Committee’s Special Subcommittee on Investigations
(regarding the SEC’s role in the Vesco and ITT matters). WSPF also
received staff reports from the House Committee on Banking and
Currency regarding, among other things, financial aspects of the
Watergate burglary. The House Armed Services Subcommittee on
Intelligence, which had held hearings on CIA involvement in the
burglary of Ellsberg’s psychiatrist’s office and the Watergate cover-up,
originally refused to provide transcripts of its executive session
hearings.

In addition to these sources of information, in April 1974 the
Joint Committee on Internal Revenue Taxation released a report on
President Nixon’s tax returns from 1969 through 1972. The report
was useful to the attorneys from the Special Prosecutor’s office who
were investigating charitable contribution tax deductions taken by
Nixon for his gift of pre-Presidential papers. Also, the staff of the
Joint Committee cooperated fully with the WSPF attorneys in their
investigation.

As investigations led to prosecutions, the Special Prosecutor’s office
had to comply with the legal requirement of supplying defense counsel
with prior statements made by prospective trial witnesses on topics
they would testify to at trial and any evidence in the Government’s
possession which tended to exculpate the defendant. Although he was
convinced that this requirement did not extend to Congressional
testimony, the Special Prosecutor, in an effort to be as complete as
possible, wrote to a number of Congressional committees requesting
that they turn over to the prosecutors any relevant executive session
testimony or staff interviews that they possessed on matters approach-
ing trial. Most of the committees immediately supplied the relevant
material in their possession. The House Armed Services Committee
eventually agreed to provide executive session material of witnesses
who testified before the Subcommittee on Intelligence relative to the
Subcommittee’s inquiry into the alleged involvement of the CIA in the
Watergate and Ellsberg break-ins. The testimony was made available
for the Watergate cover-up trial.

In a few instances, members of Congress and Congressional com-
mittees referred matters to the Special Prosecutor’s office for in-
vestigation. Any such allegation that merited full investigation was
fully pursued. Others either did not fall within WSPF’s jurisdiction
or proved to lack potential after initial inquiry. In one instance, a

206

referral by a committee resulted directly in a conviction. On Septem-
ber 10, 1973, after G. Gordon Liddy refused to be sworn in to testify
before the House Armed Services Committee’s Subcommittee on In-
telligence, the House of Representatives voted to cite Liddy for
contempt of Congress. The case was referred by the U.S. Attorney for
the District of Columbia to WSPF. Liddy was subsequently indicted
on March 7, 1974, for refusing to testify or produce papers before a
Congressional committee, and he was found guilty on May 10, 1974.

The Senate Select Committee on
Presidential Campaign Activities

The Senate Select Committee on Presidential Campaign Activities
(SSC) was established approximately three months prior to the
appointment of the Watergate Special Prosecutor. Widespread allega-
tions of executive misconduct had led the Senate to vote unanimously
for the creation of a select committee to investigate the Watergate
break-in and cover-up, campaign practices and financing, and
campaign espionage during the 1972 Presidential campaign. 2

The Committee’s initial dealings with the Department of Justice
involved requests for access to FBI investigative reports on the
Watergate investigation, summaries of which were provided, and
notices of intent to apply for court orders requiring witnesses to
testify before the Committee. 3 This caused considerable concern
to the prosecutors investigating the Watergate case because any
testimony or evidence obtained directly or indirectly therefrom could
not be used against the witness in future prosecutions. A failure to
prove no “taint” would result in the case being dropped. The SSC’s
decision to allow live television coverage of the hearings intensified
the difficulty of such proof and raised the problem of a future claim
by defendants that pre-trial publicity prevented the empanelling
of an unbiased jury and the assurance of a fair trial.

The SSC public hearings opened on May 17, 1973, a week before
Cox was sworn in as Special Prosecutor. Cox was immediately faced
with the problem of publicity generated by the SSC’s hearings and the

2 The Senate Select Committee on Presidential Campaign Activities was
established under Senate Resolution 60, dated February 7, 1973.

3 Under Federal law, a Congressional committee wishing to obtain testimony
from a witness who refuses to testify on the grounds of his Fifth Amendment
privilege against self-incrimination must notify the Attorney General ten days
before seeking a court order compelling the witness to testify. The Attorney
General cannot prevent the Committee from seeking the order but can ask the
court for a delay of up to 20 days. When the Committee makes its application
to the court, and the court finds that the Attorney General has not exercised
his delay option or has done so and 20 days have expired, the court will order
the witness to testify. The witness is thus “immunized” from any use of his
testimony against him in criminal investigations or prosecutions.

207

effect this would have on his criminal investigations and subsequent
indictments. On June 2, 1973, the Special Prosecutor met with
Senator Ervin to request that the SSC temporarily suspend public
hearings. Cox then expressed his concern in a June 4, 1973, letter
to Senator Ervin and requested that the Committee consider two
important points: one, the danger that pre-trial publicity might
interfere with fair trials; and two, the risk that the Senate Com-
mittee’s granting immunity to major potential defendants would
bar successful prosecution. Senator Ervin responded in a June 5,
1973, letter stating that the public hearings would continue.

By this time, the SSC had applied to the District Court for orders
requiring John Dean and Jeb Stuart Magruder to testify. Both Dean
and Magruder were viewed by Cox as potential defendants. Ervin’s
letter led the Special Prosecutor to request that the District Court
impose conditions on these immunity orders. Suggested conditions
included requiring the exclusion of the broadcast media when Dean
and Magruder were to testify or taking their testimony in executive
session. The SSC argued that it was not within the court’s power to
impose conditions upon the grant of an immunity order. The court
ruled that, since its duties in this regard were purely ministerial, it
had no choice but to grant the Committee’s request. 4 Cox announced
that he would not appeal the District Court order, but on June 19,
1973, prior to Dean’s testimony before the SSC, he filed with the court
a list of all the evidence against Dean that had been compiled pre-
viously by the U.S. Attorneys and WSPF. This was done to protect
WSPF against future claims by Dean concerning the validity of an
indictment or admissibility of evidence on the ground that such indict-
ment or evidence was derived directly or indirectly from testimony
compelled by the SSC. No “ taint” papers were filed in regard to
Magruder because he had already agreed with the U.S. Attorneys
to plead guilty to a one-count information on his involvement in the
Watergate matter.

On June 5, 1973, the Senate Select Committee filed with the court
a notice of intent to apply for an order conferring immunity and
compelling the testimony of Gordon Strachan. In an accompanying
letter to the Attorney General, Majority Counsel Sam Dash requested
a waiver of the 10-day notice period as well as the additional 20-day
extension granted by law. Richardson referred the matter to Cox,
as the Attorney General had already delegated to the Special Prose-
cutor his authority over immunity applications by the SSC.

On June 8, 1973, Cox’s assistants, James Neal and James Voren-
berg, discussed with Dash and Minority Counsel Fred Thompson the
Special Prosecutor’s concerns about immunizing Strachan, stating

4 Application of U.S. Senate Select Committee on Presidential Campaign
Activities, 361 F. Supp. 1270 (D.D.C. 1973).

that more investigation was needed before they would be able to
determine if Strachan was a potential defendant. Time was also needed
to isolate the evidence against Strachan as was being done with respect
to Dean. It was agreed that since the SSC would not schedule
Strachan’s testimony for about a month, WSPF would invoke the
20-day extension granted by law and take the matter up at the end of
that period. On July 5, the Special Prosecutor notified the District
Court that WSPF was not opposed to the SSC's request for an order
compelling Strachan to testify and the court granted the order on
July 6, 1973. Prior to Strachan's testimony before the SSC, the Special
Prosecutor filed with the court a list of the evidence against him com-
piled by WSPF.

In regard to those witnesses who were testifying before the Select
Committee without grants of immunity and who were viewed by
WSPF as potential defendants, Cox suggested in a letter to Senator
Ervin (concerning the SSC's scheduling of John MitchelPs testimony)
that the Committee advise the witness of his status in the investiga-
tion, inform him of his rights and make it clear that “any testimony
that he gives . . . without invoking his privilege against self-
incrimination under the Fifth Amendment to the United States Con-
stitution constitutes a waiver of that privilege” and that the waiver
was not the result of compulsion.

After Alexander Butterfield testified before the SSC on July 16,
1973, about the existence of the White House taping system, the
Special Prosecutor and Senate Select Committee both subpoenaed
tapes of certain conversations that they felt were vital to their Water-
gate investigations. The President refused to comply with the sub-
poenas and both the Special Prosecutor and the SSC initiated litigation
to force compliance. In an August 22, 1973, letter to Judge Sirica,
Sam Dash attempted to have the SSC's case ( SSC v. Nixon, CA
1593-73) and the Special Prosecutor's case (In Re Grand Jury Sub-
poena Duces Tecum Issued to Richard Nixon, Misc. No. 47-73) con-
sidered together. Both Cox and the President's counsel, Charles Alan
Wright, noting the differences between the two cases on central issues,
opposed the Committee's request. Since the District Court had already
scheduled a hearing for August 22 on Cox's case, the Special Prosecutor
was also concerned about possible delay in grand jury proceedings.
The District Court decided not to consider the cases jointly and
on October 17, 1973, dismissed the Committee's suit for lack of
jurisdiction.

Representatives of the Senate Select Committee were then drawn
into the dispute over the President's insistence that the courts could
not order him to provide tapes subpoenaed from the White House by
the Special Prosecutor. On October 19, 1973, the same day the Com-
mittee filed an appeal from the District Court's dismissal of their
tapes suit and the day before the Special Prosecutor was fired, Senators

209

Ervin and Baker were called to the White House to meet with the
President and his counsel. The President first met with Baker alone
and then met with Baker and Ervin to discuss a solution to the tapes
issue. After the meetings, the President announced that Cox had
refused to accept a compromise on the tapes worked out between
Attorney General Richardson, Senators Ervin and Baker and the
White House.

Initial press reports indicated that Ervin and Baker had agreed
to drop their litigation in exchange for summaries of certain tapes to
be verified by Senator Stennis . 5 Outrage by members of the SSC that
they had not been consulted led Ervin to explain that an oral proposal
had been made and that Ervin and Baker had agreed to present the
compromise to the Committee . 6 Both expressed shock, however, on
learning that their agreement was tied to Cox’s dismissal. Ervin
stated that his and Baker’s agreement had nothing to do with Cox’s
attempt to gain access to the tapes and later affirmed his understand-
ing that the President was offering the Committee verbatim tran-
scripts, not mere summaries. At any rate, before the SSC had a chance
to clarify the situation, the White House withdrew its proposal; on
October 23, 1973, White House Chief of Staff, Alexander Haig,
announced that the “Stennis Compromise” reached on October 19
with Senators Ervin and Baker had been cancelled as a result of the
President’s decision to turn the subpoenaed tapes over to the District
Court for the grand jury.

Meanwhile, the Senate Select Committee continued to press the
case for compliance with its subponea. On December 28, 1973, the
Court of Appeals for D.C. reversed the District Court’s determination
that it had no jurisdiction over the case, and remanded the case back
to the District Court. Then, on January 25, 1974, the District Court
requested the Special Prosecutor to file a statement concerning the
effect of compliance with the SSC’s subpoena for five specified tapes
on future actions by the Special Prosecutor’s office.

The memorandum filed by the Special Prosecutor on February 6,
1974, reflected a compromise position. While admitting that compli-
ance with the SSC’s subpoena would add one more factual incident of
pre-trial publicity, but one not nearly sufficient to prevent the court
from empanelling an unbiased jury, WSPF took no affirmative stance
against enforcement of the subpoena. On February 8, 1974, the
District Court declined to enforce the SSC’s subpoena and dismissed
the litigation. Once again, the Committee appealed the District
Court’s dismissal and on May 23, 1974, the Court of Appeals affirmed
that decision.

5 SSC Final Report, July 1974, 93d Cong. 2d Sess., p. 1081.

6 Part I, Special Prosecutor Hearings, Senate Judiciary Committee, p. 49.

The SSC was originally scheduled to submit a final report of its
findings and recommendations on February 28, 1974. However, in
early February it was announced that it would delay its report so
as not to prejudice potential jurors in forthcoming trials. Special
Prosecutor Jaworski had also expressed concern, in a December 11,

1973, letter to Senator Ervin and in a meeting on January 31, 1974,
with Senators Ervin and Baker, that the Report not include factual
conclusions, at least insofar as any assessment of criminality of persons
who could be defendants in a later jury trial. Also, on February 19,

1974, the SSC voted unanimously to hold no further public hearings
to avoid interfering with the House Judiciary Committee’s inquiry
into the impeachment of Richard Nixon and with the trials of
Watergate-related figures. Hearings concerning remaining matters
under investigation, including the circumstances surrounding a
$100,000 contribution given by agents of Howard Hughes to the
President’s friend Charles (“Bebe”) Rebozo, 7 and campaign contri-
butions from the dairy industry, were held in closed sessions.

An important aspect of the relationship between WSPF and the
SSC was the exchange of information between the two. Early SSC
requests to the Justice Department for access to documents were
referred to the Special Prosecutor’s office and a procedure was estab-
lished for the SSC to gain access to some documents in the Special
Prosecutor’s possession. The SSC submitted to WSPF an inventory
of the material collected by the SSC in regard to specific individuals.
WSPF would then indicate that it possessed additional documents
and from whom the documents were obtained. The SSC would either
seek to have a witness consent to their receiving the material or apply
for a court order.

WSPF obtained material from the SSC pursuant to an agreement
reached between Cox and Ervin in September 1973. Two WSPF
attorneys reviewed the SSC’s master inventory of witness statements,
documents and evidence to locate information necessary for investiga-
tions. The SSC then provided some of the materials requested by the
Special Prosecutor. Documents were also acquired by means of in-
formal contacts, later confirmed in writing, between staff members of
the WSPF and SSC.

In a February 22, 1974, letter to Senator Ervin, Special Prosecutor
Jaworski requested access to the SSC’s investigative and executive
session materials. The SSC complied with the request and also pro-

7 The Senate Select Committee undertook an extensive investigation into the
Hughes-Rebozo matter. Documents acquired during their investigation were
supplied to the Special Prosecutor's office, including interviews and executive
session testimony of Rebozo (October 17-18, 1973, March 20-21, 1974, and
May 9, 1974).

vided all information on its computer tapes. 8 WSPF requested not to
receive certain immunized testimony (Strachan, De Diego, Martinez
and Barker) due to problems that could arise with respect to using
“tainted” testimony.

During the spring and summer of 1974, WSPF continued to request
documents from the SSC relating (1) to trials it was engaged in ( U.S.
v. Chapin , U.S. v. Ehrlichman, U.S. v. Mitchell , U.S. v. Connally ),
(2) to SSC investigations such as Hughes- Rebozo, (3) to documents
underlying Senator Baker’s report on Cl A- Watergate connections
and (4) to interviews and executive session testimony of numerous
individuals.

The SSC’s Final Report was released on July 13, 1974, and a few
months later the Committee formally closed down operations. Docu-
ments acquired by the Committee, however, were still of interest to
the Special Prosecutor’s office. Pursuant to S. Res. 369, exclusive
access to aDd use of the SSC files was granted to the Senate Rules
Committee pending file transfer to the National Archives. WSPF
was able to acquire SSC documents through requests to the Senate
Rules Committee. In addition, the Senate Rules Committee honored
requests by WSPF that certain categories of documents temporarily
be withheld from public distribution to protect the rights of individuals
involved in upcoming trials or pending investigations.

The Senate Judiciary Committee,

House Judiciary Committee,

and House Subcommittee on Criminal Justice

The Senate Judiciary Committee had received assurances from
Elliot Richardson during his confirmation hearings in May 1973 that
the Special Prosecutor would operate independently and would have
full responsibility for investigations under his jurisdiction. Five months
later, following the firing of Archibald Cox and the abolition of WSPF,
the Senate Judiciary Committee and the House Judiciary Com-
mittee’s Subcommittee on Criminal Justice considered legislation
calling for the appointment of an independent Special Prosecutor.
Although no legislation was passed, the introduction of the Special
Prosecutor bills and the determination of the two committees to hold
hearings on the proposals added to the pressure on President Nixon
to reinstate the complete independence of WSPF. A provision was
added to the charter stipulating that the Special Prosecutor could
not be dismissed without the President’s obtaining the consensus of
the majority and minority leaders of the House and Senate and the

8 SSC Final Report, July 1974, 93d Cong., 2d Sess., p. 1093. SSC cooperation
with WSPF on the use of computer data is described in Appendix H of the instant
report.

Zli

chairmen and ranking minority members of the House and Senate
Judiciary Committees.

Prior to considering the Special Prosecutor legislation, which is
discussed in Appendix B, the Subcommittee on Criminal Justice,
chaired by Congressman William Hungate, heard testimony on legisla-
tion to extend the grand jury empanelled on June 5, 1972. This grand
jury, which had been investigating the Watergate break-in and
cover-up, was due to expire on December 4, 1973, at the end of its
regular 18-month term. There was widespread backing for extension
of the grand jury’s term in order to avoid the delay in completing its
investigations which would have resulted if the prosecutors had to
present great masses of evidence to a new grand jury.

The Subcommittee favorably reported to the full Committee a
bill that extended the June 5, 1972, grand jury for six months and
provided for another six month extension if the U.S. District Court
for the District of Columbia determined that the business of the
grand jury would not be completed by June 4, 1974. The bill was
reported by the full Committee to the House and passed by the House
of Representatives on November 6, 1973. After Senate approval, the
bill was signed by President Nixon on November 30, 1973 (P.L.
93-172). 9

The Senate Judiciary Committee had virtually no contact with
the Special Prosecutor between the hearings on the nomination of
Elliot Richardson to be Attorney General and the resignation of
Richardson and firing of Cox. After Leon Jaworski’s appointment as
the second Special Prosecutor, the Committee assumed a guardian
posture over WSPF’s work. Cox, the first witness at the hearings on
the Special Prosecutor bills, had told the Committee of his frustration
over White House failure to provide evidence needed in the Watergate
investigations. On November 5, Chairman James Eastland wrote to
Acting Attorney General Robert Bork to request a list of all materials
Cox had requested from the White House and an indication of which
materials had been provided and which refused. Bork referred the
letter to Jaworski, who sent to Eastland, in confidence, a copy of each
request Cox had made and a report on those which had not been met.

When Jaworski testified before the Senate Judiciary Committee on
legislative proposals for a special prosecutor, Senator Charles Mathias
asked that he submit to the Committee a report on the status of all
requests for evidence from the White House. This request was formal-
ized in a letter from the Chairman to Jaworski a week later. Jaworski

9 The additional six month extension, determined necessary by the Special
Prosecutor’s office and the grand jury, was granted by Chief Judge Hart on May
31, 1974. The June 5, 1972, grand jury investigated the Watergate break-in and
cover-up until its expiration on December 4, 1974; the members had served longer
than any Federal grand jury in the Nation’s history.

213

responded that some items had been received and that discussions
with White House counsel over other items were planned. Two
months later, Jaworski submitted to the Chairman a full report on
the results of the discussions. In March, thanking Jaworski for his
February report on the status of efforts to obtain evidence from the
White House, Eastland wrote :

We welcome your continued provision to the Committee of any
information or advice in the progress of your investigation which
you think would be appropriate to the Committee's oversight
responsibility or helpful for the performance of the duties with
which you have been charged.

In accordance with this, and with Jaworski's pledge to the House
Subcommittee on Criminal Justice and the Senate Judiciary Commit-
tee that he would inform both committees of White House attempts
to limit his jurisdiction and independence, Jaworski wrote to Chairman
Eastland on May 20, 1974. In the letter, a copy of which was sent to
Chairman Peter Rodino and Ranking Minority Member Edward
Hutchinson of the House Judiciary Committee, Jaworski advised
Eastland that Presidential counsel James St. Clair, in a closed hearing
on Jaworski's subpoena of Presidential tape recordings for use in the
Watergate cover-up trial, had claimed that Jaworski, as a member of
the executive branch, had no right to subpoena the President. Jaworski
reminded Eastland that Alexander Haig, after consulting with the
President, had promised Jaworski he would have the right to press
legal proceedings against the President. Jaworski reported that
Judge Sirica had overruled the White House claim. The next day,
May 21, 1974, the Senate Judiciary Committee passed a resolution
expressing support for Jaworski's jurisdiction to seek the tape
recordings.

Jaworski's claim to the tapes was upheld by the Supreme Court
on July 24, 1974. Two weeks later, President Nixon resigned, and on
September 8, 1974, he was granted an unconditional pardon by Presi-
dent Ford for all criminal acts he may have committed while he was
President. Nixon's resignation led the House of Representatives to
drop pending impeachment proceedings, and the pardon was an effec-
tive bar to any possible criminal charges against him.

Fearing that all the facts of Nixon's involvement in Watergate
would never be revealed, eight members of the Senate Judiciary
Committee wrote Jaworski that they felt it was his responsibility to
report to Congress fully on the evidence obtained in the course of his
investigations, including a full and complete record detailing any
involvement of Nixon. Jaworski responded that although the matter
was under study, he thought he had no authority to issue such a
detailed report.

The Subcommittee on Criminal Justice, which had virtually
no contact with the Special Prosecutor following the hearings on

214

grand jury extension and Special Prosecutor legislation, assumed
an oversight posture as to WSPF following the pardon of Richard
Nixon. The concern of the Subcommittee that all the evidence relating
to former President Nixon’s involvement in Wategate would never
be revealed led them to seek assurance from the Special Prosecutor
that the former President’s tapes and documents would remain under
White House control until Congress considered legislative proposals
to deal with the issue. Jaworski responded in a September 24, 1974,
letter to Chairman Hungate that the Special Prosecutor’s office had
requested the Ford Administration to take no steps to disturb the
location or custody of Nixon’s tapes and documents. Congress even-
tually passed, and President Ford signed into law, the Presidential
Recordings and Materials Preservation Act (P.L. 93-526) on Dec-
ember 19, 1974. 10

The concern that former President Nixon’s full involvement in
Watergate would not be revealed also led to the introduction in Con-
gress of a number of bills requiring the Special Prosecutor to publish
a report detailing all evidence concerning the involvement of Richard
Nixon in any criminal offense. Much of this legislation was introduced
in the fall of 1974 following President Ford’s pardon of Nixon and
referred to the Subcommittee on Criminal Justice. Several sponsors
of the proposed legislation appeared before the Subcommittee at that
time and were unanimous in stating that their overriding purpose
in introducing the legislation was to insure that a complete record
of Watergate and its related events be made public. No action on the
proposed legislation was taken during the 93d Congress.

On January 30, 1975, at the start of the 94th Congress, the Hungate
Subcommittee heard testimony from Special Prosecutor Henry Ruth,
former Special Prosecutor Jaworski and James Vorenberg, consultant
to the Special Prosecutor, to determine whether such legislation
should still be considered. In his testimony, Ruth expressed doubt
about the constitutionality of legislation authorizing the dissemination
of evidence on Richard Nixon’s role in the Watergate affair. He
pointed out that it would be impossible for WSPF to compfy with
such legislation without releasing raw data involving persons other
than Nixon and that such a release would violate the legal rights of
all those involved. Ruth added that the basic Watergate cover-up
evidence against the former President had been made public through
the impeachment proceedings, the hearings of the Senate Select
Committee on Presidential Campaign Activities, and the trials of
Watergate-related figures.

10 The law directs the General Services Administration to make public all
papers bearing on Presidential abuses of power. Former President Nixon is con-
testing the constitutionality of this law, claiming that the papers are his property.

215

Jaworski and Vorenberg supported Ruth’s position in their testi-
mony. Jaworski, expanding on his earlier response to the Senate
Judiciary Committee about a detailed report, stated that he did not
believe that the release of a report on matters that did not involve the
filing of charges was part of the prosecution function. Vorenberg
concurred, stating that the only way a prosecutor ought to speak about
individuals under investigation was through the grand jury and a
formal indictment. If an investigation did not lead to that, it would
be a violation of an individual’s rights for a prosecutor to disclose the
information he had gathered.

In light of the arguments by the prosecutors against the proposed
bills that would require release of raw investigative files, the Sub-
committee on Criminal Justice decided not to proceed with legisla-
tion that would specify what WSPF reports should contain.

In July 1975, the Subcommittee on Criminal Justice requested
Ruth to testify concerning the termination of the office and publicized
allegations that remained unresolved. The session was closed to the
public to protect the rights of persons who may have been investi-
gated but not indicted. In his publicly released opening statement,
Congressman Hungate stated that the purpose of the meeting was
“ . . . to fulfill [the Subcommittee’s] oversight responsibility and to
satisfy the legitimate concern of the public and the Congress that a
complete and thorough investigation has been conducted.” The Sub-
committee, he said, also sought “ ... to insure that the Special
Prosecutor’s final report will be as complete an account of Watergate
as possible without prejudicing or injuring the rights of innocent
persons and that it will be widely available to the public.”

Special Prosecutor Ruth responded to the Subcommittee’s ques-
tions concerning the termination of the Special Prosecutor’s office,
the thoroughness of investigations, the composition of the final report
and the disposition of documents and other evidence.

2*6

Appendix F:

Relations With
Other Law Enforcement
Agencies

FEDERAL INVESTIGATIVE AGENCIES
Federal Bureau of Investigation (FBI)

At the time Cox was appointed Special Prosecutor, the FBI had
been working on various aspects of the Watergate break-in and
cover-up for almost a year. One of Cox’s most difficult early decisions
was whether to use the FBI as his principal investigative arm or to
hire his own investigative staff. This required him to determine, at an
early stage of his investigation, how thorough the original FBI inves-
tigation had been, the extent of FBI involvement, if any, in the
Watergate cover-up and whether such involvement was so extensive
and so pervasive as to prevent the FBI from continuing the investiga-
tion under the new Special Prosecutor.

The FBI’s possible involvement in many of the matters under
investigation by the new Special Prosecutor was, by the time of
Cox’s appointment, a subject of public debate. Already on the public
record were disclosures that former Acting FBI Director, L. Patrick
Gray, had destroyed documents from E. Howard Hunt’s White House
safe, reports of White House interference in the Watergate investiga-
tion and attempts to halt the investigation on bogus national security
grounds, the intimidating presence of White House lawyers during
FBI interviews with White House and CRP staff members, copies of
FBI investigative reports sent to the White House, questionable wire-
tapping requests to the FBI by White House officials, requests for
FBI investigations of White House “enemies,” and hints of other
questionable actions by former FBI Director J. Edgar Hoover. James
McCord, one of the Watergate burglars, implied that there might be
trouble with the FBI when he said in his March 23, 1973, letter to
Judge Sirica that he was writing because “I cannot feel confident in
talking with an FBI agent.”

212

On May 30, 1973, shortly after arriving in Washington to take up
his duties as Special Prosecutor, Cox sent a memorandum to the
Director of the FBI requesting a full rundown on all FBI actions
pertaining to Watergate. This request asked for a specific description
of all investigations on matters within his jurisdiction, a full chrono-
logical account of all internal requests or instructions about the
Watergate investigation, a list of all communications within the
Justice Department on the Watergate investigation, any communica-
tions between the White House and the FBI on Watergate, and a
chronological listing of all contacts between the FBI and the CIA
concerning Watergate.

Cox wished to learn about the FBFs role in the Watergate investi-
gation in order to make an informed judgment whether or not the FBI
had participated in the cover-up of the Watergate affair or had suc-
cumbed to outside pressure and had not been diligent in pursuing the
investigation.

One proposal, considered in the first few days of WSPF, called for
the hiring of ten staff investigators who could report directly to the
Special Prosecutor. However, after Cox weighed all the evidence,
including the FBI's memorandum in response to his request, he
decided to continue use of the FBI to conduct investigations under the
direction of WSPF prosecutors if he could develop satisfactory working
arrangements with the Bureau.

One important factor in this decision was the appointment of
William Ruckelshaus as Acting Director of the FBI after Gray's
resignation. Ruckelshaus was not tainted in any way by earlier alleged
misconduct within the Bureau, and he was forthright and helpful in
his dealings with the new Prosecutor. There also appeared to be no
basis for doubting the integrity or diligence of the agents who had
actually conducted the investigations to date and who would pre-
sumably be the ones to continue this work under the direction of the
Special Prosecutor.

Furthermore, Cox took account of the fact that the FBI (1) had
become familiar with most aspects of the earlier investigations, (2) had
conducted interviews with most of the participants, (3) had the
resources and broad investigative experience to conduct the Special
Prosecutor’s investigations with maximum efficiency and least addi-
tional financial burden to the Government, and (4) had agents in all
parts of the country. If the Special Prosecutor had hired his own
investigators, they would be going over the same ground, for the fore-
seeable future, that the FBI had already covered. Also, staff investi-
gators hired by and reporting directly to the Special Prosecutor might
prove difficult to supervise as they moved around the country con-
ducting investigations in the name of the Watergate Prosecutor. Using
the FBI, in short, avoided duplication and seemed to make it more

218

likely that investigators would be experienced, esponsible and famil-
iar with the geographical area in which they were working.

A number of meetings were held with FBI officials in June 1973
to discuss arrangements for the FBI’s continued participation. WSPF
was anxious to avoid having investigative requests and the results of
investigations follow normal FBI channels through the Department
of Justice. There had been too much interference with FBI operations
during the early phase of the original investigation, and WSPF
recognized that even without future interference there would be
special problems since past actions of the Bureau would be involved
in the investigations. Cox obtained agreement that written investiga-
tive requests would proceed directly from WSPF to the FBI, and
written FBI investigative reports would proceed directly back to
WSPF. In addition, WSPF attorneys could deal directly with
individual FBI agents rather than having to request further work
only through normal FBI supervisory channels. Finally, the FBI
agreed to expedite all work for the Special Prosecutor, and no reports
would be sent to the Attorney General unless the Special Prosecutor
so approved in matters of possible overlap with Criminal Division
responsibilities.

While office interviews of witnesses and prospective defendants
were conducted by WSPF staff attorneys, most field interviews were
conducted by FBI agents. 1 Agents from the Washington Field Office
continued to work on the Watergate cover-up investigation and
maintained a close working relationship with the WSPF staff. Other
interviews, requests for assistance in locating persons, checking
addresses and telephone numbers, and locating and gaining access
to various documents were also performed by agents in other field
offices.

The FBI also was asked to provide fingerprint analyses, to conduct
laboratory tests, and, on a number of occasions, to perform polygraph
examinations for WSPF. Although, as indicated above, WSPF had
authority to make requests directly to FBI agents working on investi-
gations, most requests in areas other than the cover-up investigation
were made through memoranda to the FBI Director. Other requests
were made more informally by telephone to agents of the Washington
Field Office and later confirmed by memoranda.

In a few matters, assessment of the conduct of FBI agents was
part of WSPF’s investigative task. In these cases, the investigating
attorneys handled the matter exclusively in the grand jury or special
arrangements were made with the Director of the FBI for any investi-
gative assistance. Some of these matters were also under investigation
by the Inspections Division of the Bureau and these dual responsi-
bilities required coordination. For example, in WSPF’s inquiry into

1 The investigative process is described in Chapter 2 of this^ report.

219

the national security wiretap program, which was implemented by
the FBI at the direction of the White House and the Attorney General,
the Special Prosecutor arranged with Director Kelley of the Bureau
to use the FBPs General Investigative Division rather than the
Intelligence Division which normally conducts national security
investigations, but which housed some of the personnel through
whom the White House wiretap program had proceeded. This investi-
gative procedure avoided any conflict of interest, or appearance
thereof, that otherwise might have clouded the required thoroughness
and cooperation.

In summary, although the FBI was not involved in some of the
investigations WSPF conducted, and played only a small part in
others, its work in the great majority of individual matters investi-
gated by WSPF was quite extensive. In all, agents from 58 of the
Bureau’s 59 field offices conducted more than 2600 interviews at the
Special Prosecutor’s request. This work included FBI employees in
several of the FBI “legal attache” offices overseas.

Internal Revenue Service

Continuing liaison developed during the summer of 1973 between
the Internal Revenue Service (IRS) and the Special Prosecutor’s
office. The relations pertained for the most part to three areas of
joint interest.

First, IRS commenced its own project to ferret out any tax viola-
tions committed by donors or recipients of campaign contributions,
primarily in the 1972 Presidential campaign. For example, corpora-
tions that used corporate funds for such contributions may have
deducted that expense improperly from their gross income. Other con-
tributions may have involved evasion of gift tax laws, and recipients
who used contributions for personal expenses may have owed income
tax on such funds. As WSPF developed its own investigations, the
sharing of information with IRS became a daily event. When WSPF
agreed to accept a guilty plea from an individual or corporation in a
campaign contribution case, prosecutors insisted that the defendant
corporation disclose all corporate contributions to candidates for
Federal office within the period of the applicable statute of limitations;
and the Special Prosecutor also required disclosure of the basic method
each defendant had used to generate the contributed funds, including
cash accumulations in “slush funds” (usually from overseas sources)
and the use of bonus payments and expense accounts to reimburse
employees for contributions made in their own names. Most of the
guilty pleas from corporate or individual defendants did not relieve
the defendants from civil and criminal liability under the tax laws.
As a result, WSPF furnished IRS with great quantities of information
that IRS then used in their campaign contribution project.

The second area of WSPF-IRS cooperation was the tax agency’s
project to audit the tax returns of individuals who received accumula-
tions of cash during the Watergate years. The IRS agents sought to
determine whether or not any of the cash was converted to personal
use and not reported as income on the relevant individual’s tax return.

Finally, the Special Prosecutor’s office used IRS as the principal
investigators in some of the major investigative matters. Two of
these are described in Chapter 3 of this report: the Hughes-Rebozo
allegations and the inquiry into the conduct of those who participated
in President Nixon’s alleged gift of pre-Presidential papers and in the
related large tax deduction taken by Mr. Nixon for the alleged gift.

When IRS completed a criminal tax investigation and recom-
mended either further grand jury action or prosecution, the case was
sent to WSPF which could decide either to handle the tax case within
the Special Prosecutor’s office or forward it to the Tax Division of the
Department of Justice. The case involving President Nixon’s tax
returns was specifically delegated to WSPF by the IRS Commissioner
and by the Attorney General for grand jury investigation; however,
other tax cases were forwarded by WSPF to the Tax Division for
consideration under their usual policies for tax prosecutions.

The Special Prosecutor requested, and the IRS Commissioner
agreed to, the assignment of an IRS agent directly to the WSPF staff.
Anthony Passaretti of New York — who had worked with WSPF
attorneys previously employed in a U.S. Attorney’s office — was
assigned in June 1974 to assist the prosecutors in a number of investi-
gations. Several other IRS agents were placed on temporary duty at
WSPF. These agents assisted attorneys in identifying possible ap-
proaches to investigations or furnishing professional auditing as-
sistance to pinpoint possible areas of illegal activity.

Passaretti worked closely with attorneys in the Campaign Con-
tributions Task Force and helped other task forces to trace cash flows,
investigate Federal income tax returns and examine bank records.
He developed for the Watergate Task Force a chart showing the flow
of so-called “hush money” as it passed from officials of the Committee
to Re-Elect the President and White House staff members through
intermediaries to the original Watergate defendants. He was a witness
for the Government in United States v. Mitchell et al. r testifying on the
flow of this money.

Part of the investigative work of WSPF required the use of Federal
income tax returns. These were supplied to the office by IRS with
the approval of the Attorney General. Within the Special Prosecutor’s
office, access to these returns was limited to those attorneys actively
engaged in the investigation on a “need-to-know” basis.

In order to permit IRS agents to review grand jury testimony for
possible investigative leads, court orders authorizing such disclosure

221

591-439 0 - 75 - 15

under Rule 6(e) of the Federal Rules of Criminal Procedure were
obtained.

RELATIONSHIPS WITH OTHER PROSECUTORS
United States Attorneys 2

On May 31, 1973, at Cox’s request, Attorney General Elliot
Richardson issued a directive to all Department of Justice personnel
advising them of the creation of the Office of Watergate Special Prose-
cution Force and the appointment of Archibald Cox as Special Pros-
ecutor in charge of that office. The directive stated :

Effective immediately, all Divisions, Offices, Services, and
Bureaus of the Department, including the Federal Bureau of
Investigation and all United States Attorneys, will report to and
cooperate with the Special Prosecutor on all matters within his
jurisdiction.

The Special Prosecutor’s jurisdiction included offenses arising out of
the unauthorized entry into Democratic National Committee Head-
quarters on June 17, 1972, all offenses arising out of the 1972 Presi-
dential election over which the Special Prosecutor deemed it necessary
and appropriate to assume responsibility, and allegations involving
the President, members of the White House staff, or Presidential
appointees. Department employees were directed to make prompt
written reports to the Special Prosecutor on all allegations, pending
investigations, or pending cases falling within these categories. Those
working on any such matters were directed to continue their work
but to consult with the Special Prosecutor before making any signifi-
cant decisions and to furnish copies of their investigative files to the
Special Prosecutor’s office.

Several of the major investigations and pending cases which be-
came the Special Prosecutor’s responsibility came to him from United
States Attorney’s offices. The office for the District of Columbia was
handling post-trial issues involving the seven men who had been
convicted of the Watergate break-in and was investigating the alleged
cover-up by high officials of the White House and the President’s
1972 campaign committee. In addition, that office had begun an
investigation into evidence suggesting that White House officials had
been responsible for a break-in at the office of Dr. Lewis Fielding,
the psychiatrist of antiwar activist Daniel Ellsberg.

The U.S. Attorney’s office for the Southern District of New York
had obtained an indictment of former CRP chairman John Mitchell,

2 WSPF’s relationship with the United States Attorney’s office for the District
of Columbia is covered separately in Appendix C. WSPF also had extensive con-
tact with the Criminal Division of the Department of Justice, as described in
Appendix D.

222

CRP finance chairman Maurice Stans, financier Robert Yesco, and
Vesco associate Harry Sears. The indictment, returned on May 10,
1973, charged that Mitchell, Stans and Sears conspired to influence
a Securities and Exchange Commission fraud investigation of Robert
Yesco in exchange for Vesco’s secret $200,000 contribution to CRP.
An indictment of Donald Segretti and George Hearing for distributing
fraudulent campaign materials had been obtained by the U.S. Attor-
ney^ office for the Middle District of Florida on May 4, 1973. Other
U.S. Attorneys’ offices had opened investigations into possible illegal
campaign contributions.

Under WSPF’s charter, Cox had authority to determine whether
to leave these investigations and cases in the hands of the U.S.
Attorneys under his general supervision, or to transfer them to his
own staff. By mid-June 1973, Cox or one of his senior aides had dis-
cussed each of these matters with the U.S. Attorneys’ offices involved.
Cox decided that he should take over the Segretti case 3 and most of
the campaign contributions investigations. Among the considerations
that led to this decision were the fact that the Special Prosecutor’s
office was better situated than the U.S. Attorneys’ offices to determine
the extent to which each of these matters was part of a broader oper-
ation, WSPF attorneys could proceed in any district in the United
States, and the principal witnesses to question and documents to
examine were located in Washington. Furthermore, the U.S. Attor-
neys’ offices were only at early stages in their investigations of many
of those matters.

In the Vesco case, however, the U.S. Attorney for the Southern
District of New York was preparing for trial of the case by the time
WSPF was created. Therefore, after discussions between representa-
tives of the two offices, Cox decided to leave direct responsibility for
the case with the U.S. Attorney.

Throughout WSPF’s existence, office attorneys had innumerable
contacts with other U.S. Attorneys throughout the Nation. Office
attorneys conducted grand jury hearings in several districts outside
Washington, D.C., and each of the U.S. Attorney’s offices cooperated
in making the necessary arrangements. On a few occasions, a U.S.
Attorney would receive information about a possible criminal act
within the Special Prosecutor’s jurisdiction and WSPF would decide
whether to take jurisdiction. In some campaign contribution matters,
when the contribution allegation was part of a larger investigation
already well underway in the U.S. Attorney’s office, the Special
Prosecutor decided not to bifurcate the investigatory process and told
the U.S. Attorney to proceed while keeping WSPF informed of prog-
ress in the matter.

3 George Hearing’s case was handled by the U.S. Attorney’s office for the Middle
District of Florida.

223

As of August 1975, WSPF investigations had produced eleven in-
dictments not finally resolved through guilty pleas. Of the eleven trials
that were necessary, six were held in Washington, D.C., and the other
five were held, or are scheduled to be held as this report is written, in
New York City, N.Y. ; San Antonio, Texas; Los Angeles, California;
Minneapolis, Minn.; and Chicago, Illinois. In each case, the U.S.
Attorney extended full cooperation; and in the conviction of Jack
Chestnut, a dairy industry contributions matter, the Office of the
United States Attorney for the Southern District of New York con-
ducted the trial at WSPF’s request and obtained Chestnut’s
conviction.

State Prosecutors

At the time WSPF was created, Richard Gerstein, State’s attorney
for Dade County, Florida, was inquiring into allegations that the
Watergate break-in was actually planned in Dade County in violation
of State laws; and Joseph P. Busch, District Attorney of Los Angeles
County, California, had undertaken an investigation of the Fielding
break-in which led to the September 4, 1973, indictment of John
Ehrlichman, Egil Krogh, Jr., G. Gordon Liddy, and David R. Young.

Gerstein began his inquiry into the Watergate break-in not long
after the FBI began its investigation. He believed that certain actions
leading to the break-in occurred in Dade County and his office there-
fore had jurisdiction over aspects of the case. He acquired records,
cancelled checks and bank statements from Federal authorities as
part of his investigation.

Since the Watergate break-in and the alleged cover-up were the
most important responsibilities of WSPF, the Special Prosecutor
was concerned lest action by Gerstein relating to events in Florida
might impede the investigation and prosecution of the case as a whole.

Gerstein made several trips to Washington to confer with attorneys
in the Special Prosecutor’s office. In January 1974, as the tapes hear-
ings ended and the office neared indictments in the Watergate case,
the new Special Prosecutor wrote to Gerstein warning him about the
dangers of any action on the State level.

At this late date, any indictment and prosecution in Florida
touching upon matters now under consideration by the Federal
grand jury might interfere with potential Federal prosecutions.
There would be risk of difficulty and confusion in the handling of
evidence, and the interrogation of witnesses. Also, there might be
problems of double jeopardy.

I fully appreciate your responsibility for investigating and
prosecuting violations of Florida law. Nevertheless, because the
activity on which you are focusing is only a part of the activity
under investigation by this office and the Federal grand jury,
I believe this would be an appropriate case for you to defer to

224

Federal jurisdiction,, at least in the first instance. I do not overlook
the problems you face under the Florida statute of limitations,
but, as I indicated today, the Federal investigation should be
completed sufficiently in advance of your deadline to allow you to
take whatever action you deem appropriate after the Federal grand
jury concludes its investigation. Accordingly, I renew my request
that you continue to defer any action until that time.

The letter and subsequent conversations with the Dade County
State's attorney resulted in his deferring to the Federal grand jury
in Washington.

The Los Angeles County investigation into the break-in at the
office of Dr. Lewis Fielding began before the appointment of a Special
Prosecutor. After Los Angeles County indictments were returned on
September 4, 1973, the Special Prosecutor issued a statement in which
he made clear that the “Federal interest” in the Fielding break-in
predominated:

This office has, from its beginning, been investigating the
events leading to the break-in at Dr. Fielding's office, both specif-
ically and as part of a wider inquiry into other possibly illegal
activities purportedly undertaken in the name of “national
security.”

In our view the Federal interest in dealing with any possible
illegal activities by White House employees is clearly predominant.

The statement expressed confidence “that ways can be found of
avoiding conflict and confusion while the Federal investigation and
prosecution of any resulting indictments go forward.”

The California case went forward on its own schedule, and de-
fendant G. Gordon Liddy was transferred from the D.C. jail to
California to await trial. When the Federal grand jury in Washington
handed up indictments in the case on March 7, 1974, District Attorney
Busch came to Washington, met with Jaworski, and agreed to seek
court dismissal of the indictments pending against Krogh, Liddy and
Young. He wished to retain a perjury charge against Ehrlichman,
however, and Jaworski expressed no objection.

After their meeting Busch and Jaworski issued a joint statement
announcing the dismissal:

As a result of these discussions and for reasons assigned by the
Special Prosecutor, District Attorney Busch has agreed to seek
dismissal of the charges of conspiracy and burglary as to David R.
Young, John Ehrlichman and G. Gordon Liddy. Among the
reasons given for seeking to dismiss are that many of these issues
involve matters of national interest and, therefore, would best be
decided in the Federal court system. Also, the two indictments
would be exposing defendants to trial in two different jurisdic-
tions and, in fairness to those defendants charged in both juris-
dictions and in the interest of justice, they should be tried in one
jurisdiction. The perjury charge as to John Ehrlichman in Los
Angeles County will remain. It invokes protection solely of a
State interest. Mr. Jaworski expressed his deep appreciation to

zzs

Mr. Busch and his staff for their cooperation in resolving these

matters.

The perjury charge was dismissed in Los Angeles after sentencing
in United States v. Mitchell, et al., on February 21, 1975.

*******

In addition to the relations described above, WSPF also received
extensive help from other Federal agencies. Several of the regulatory
agencies were requested to furnish information related to WSPF
investigations of campaign contributions, and office attorneys were
permitted access to relevant files. In addition, when WSPF completed
a case wherein the subject matter was of interest to a regulatory
agency, pertinent information was furnished to them. For example, the
Campaign Contributions Task Force had close liaison with the Securi-
ties and Exchange Commission which investigated and brought
subsequent proceedings against many of the corporations which had
pleaded guilty in WSPF cases.

Support assistance in connection with witness security, witness
transportation and witness availability was received on an intensive
basis from the Bureau of Prisons and the United States Marshals
Service, both agencies within the Department of Justice. The leader-
ship and personnel of both these agencies were always cooperative
and helpful to WSPF attorneys.

Finally, officers from the Federal Protective Service (part of the
General Services Administration) served as guards and general
keepers of the security at WSPF’s offices. Officers were on duty 24
hours each day, seven days each week throughout WSPF’s existence.
The security arrangements were under the supervision of Winslow
Joy of the Department of Justice.* They maintained the security
without flaw.

226

Appendix G:

Press Relations

By the time of Archibald Cox's appointment as Special Prosecutor,
“Watergate” had become the major journalistic event in the Nation.
The Senate Select Committee hearings, which had begun a week
earlier, were covered live daily by the major networks, enabling
millions of Americans to witness the unfolding of the scandal.
Inspired or embarrassed by the persistent investigative reports of the
Washington Post , many reporters assigned to cover the affair scrambled
frantically in the competition to discover and reveal new examples of
executive branch misdeeds. Although Cox realized that his obligations
as a prosecutor would necessarily require that he conduct his work in
utmost confidentiality and that there would be little he could say to
the press, he decided early in his tenure to establish a public affairs
office to handle what was certain to be a massive volume of inquiries
from the press and the public.

Cox was mindful of the national concern over Watergate and of
the public's right to be kept as fully informed as possible about the
work of his office. “The public deserves as much accurate information
as is consistent with the sometimes severe constraints placed on
prosecutors as officers of the court,” he said when he announced the
establishment of the Public Affairs Office. In addition to observing
these constraints, it was important to demonstrate the professional
competence and integrity of the office by maintaining the con-
fidentiality of information received in office interviews and grand
jury appearances. It was also important to instill confidence on the
part of potential witnesses that their dealings with the office would
not be subjected to unwarranted or premature public disclosure.

At the time, a number of news stories had appeared — attributed
to sources in both the legislative and executive branches — which
purported to detail allegations against various figures linked to
Watergate. Cox was determined that his office would have no part in
adding to speculation concerning his work. His initial success in this
endeavor was described by the New York Times , which reported on
May 31:

.An imposed silence fell over the Watergate criminal investi-
gation today as Archibald Cox, the special prosecutor, and his
staff began reviewing the case.

227

Mr. Cox seemed to be clearly in charge. His order to refrain
from any kind of statement, comment or speculation about any
aspect of the investigation was being followed by usually talkative
sources in the Justice Department.

In a memorandum to the staff dated August 15, Cox formalized
the office policy concerning press relations. “Aside from the normal
restraints on a prosecutor, we have the added problems of the explosive
nature of the matters we deal with, and the extra competitive strain
on many of the reporters who cover us,” the memorandum noted.
No one other than Cox, his task force heads and members of the
senior staff were expected to talk to reporters, and then only rarely.
No attorney had permission to submit to an interview without
clearance from the public information officer. As a general rule, only
the Special Prosecutor or his official spokesman was expected to
represent office policy to the press. 1

The public information office decided at the outset that it would
attempt to handle press inquiries and press problems on an individual
basis whenever possible, avoiding general press briefings and press
releases. This meant that the number of telephone inquiries each day
multiplied, but most of the 45 reporters who covered the office at
the height of public interest approved of a system in which they were
handled separately, even if it meant waiting several hours in some
cases before their inquiries were answered. The number of daily tele-
phone calls sometimes ran to more than 200. A major effort was made
in the early weeks to convince reporters that the office intended to
be “leakproof” and most reporters approved of this policy, providing
it was adhered to. Partly because of severe space problems, there
was no press room at 1425 K Street. Newsmen were discouraged from
coming to the offices without an appointment, and only on rare
occasions was a camera crew stakeout rewarded with an interview
by either a staff member or a visitor to the office. Often extra effort
was made to avoid such interviews by having individuals leave the
building through a side exit.

The basic guidelines for the Special Prosecutor’s relations with
the press were judicial orders, regulations, and professional standards
adopted by the U.S. District Court, the Department of Justice, and
the American Bar Association. Once indictments were returned, the
attorneys and the public information office usually chose to err on

1 “We have made it a general rule,” the August 15 memorandum noted,
“that we do not wish to have information disseminated as from a ‘source close
to the prosecution’ or any similar euphemism which makes it clear that it comes
from this office but that it is given anonymously. This device is sometimes used
by diplomats and others who wish to disseminate information but avoid the
embarrassment of admitting that they are the source. We are not in such
a position.”

228

the side of caution and say nothing that could be construed as an
extrajudicial statement concerning a pending case.

On the other hand, to give the public as much information as
possible about the Special Prosecutor’s office in the early stages of
their work, both Special Prosecutors Cox and Jaworski made them-
selves available to reporters at occasional news conferences and in
formal interviews in their offices or at television studios. A number
of less formal visits were arranged with individual newsmen or news
organizations as a means of accommodating the intense media interest
in the work of the office. In each case, it was understood in advance
that no confidential material would be disclosed.

The secrecy with which the Special Prosecutor’s office operated
appeared to the press at times excessive. Some members of the press
were especially dissatisfied with what seemed to be excessive secrecy
surrounding court proceedings in which WSPF was involved — the
sealing of court documents, lack of detail in court papers and failure
to disclose fully what alleged offenses were disposed of through
negotiated guilty pleas. More generally, the notoriety of the cases
brought by the office, the massive press and public interest in the
outcome of the office’s investigations, the amount of evidentiary
material laid out on the public record by the Senate Select Com-
mittee and others, and the President’s possible personal involvement
created intense pressure to find out what was going on behind the
heavily guarded entrance to the Special Prosecutor’s office. This
pressure worried prosecutors who were not used to operating under
such intense public scrutiny and who were concerned that massive
publicity could jeopardize the cases they had laboriously and care-
fully investigated.

Many reporters covering the office felt that the “legal considera-
tions” advanced for secrecy did not justify denying them information
to which they felt entitled. As one reporter put it :

I think your office has put together one of the best bands of
lawyers this town has ever known, but they are still government
lawyers and they think like government lawyers. And government
lawyers, and other Washington lawyers, got us into this mess in
the first place. So I think in this area of cases above all, we need
to know more about the way government lawyers think and why
they decide to do things and not to do things. Lawyers don’t
like to talk about those things and over the years they have
developed all sorts of fancy reasons not to. And since congressmen
(mostly) and judges (entirely) — the only ones with subpoena
powers — are lawyers too, nobody can make them. But I think
you ought to be prepared to explain your decisions. And if you’re
not, you ought to be prepared to explain why you’re not.

Most Government agencies (like other organizations) are affected
by leaks, which usually result from attempts by individuals within
the agency to explain or defend their actions or to ingratiate them-

selves with journalists, and from good detective work by newsmen.
The Watergate Special Prosecution Force had two particular concerns
about leaks: that they would create prejudicial publicity which
might jeopardize investigations and prosecutions, and that they
would reflect poorly on the professionalism and the impartiality of
the staff.

Fortunately, WSPF experienced very few suspected leaks. In
August 1973, it was discovered that some information discarded as
trash had made its way to the Washington Post. A shredder was pur-
chased to prevent any such experience in the future. In three other
situations (one in the summer of 1973, one in early 1974, and the last
in early 1975), stories appeared which some thought might have origi-
nated at least indirectly from WSPF staff members. As a result, in an
attempt to ascertain the source of the stories, the Special Prosecutor
directed that all employees who had access to the information sign
affidavits as to any discussions they may have had with reporters. No
improprieties were discovered.

Apart from dealing with representatives of the news media, the
public information office handled relations with its counterparts at
the Department of Justice and the White House. Relations with the
Justice Department’s Office of Public Information (PIO) were kept
friendly but distant in order to emphasize WSPF’s independence.
While the offices frequently consulted on press inquiries of mutual
concern, neither attempted to go beyond this level. Justice PIO did
not supervise the prosecution force PIO and neither discussed with
the other any dealings which the Special Prosecutor might be having
with the Attorney General or other departmental officials.

Relations with the White House press office were almost non-
existent during the Nixon Administration. Some members of the
White House staff who had frequent dealings with the press often
attacked the prosecution staff, usually on a background basis not
directly attributable to the quoted party. WSPF responded to re-
porters regarding these criticisms, but rarely contacted White House
staff members. In one instance, however, Special Prosecutor Jaworski
wrote to White House press secretary Ronald Ziegler to refute Ziegler’s
public inference that the WSPF staff was acting from politically
partisan motives.

Relations with the White House press office during the Ford
Administration were friendly but infrequent.

230

Appendix H:

Information Section

WSPF created an Information Section to provide a computerized
information retrieval system from a data base consisting of sworn
testimony, office interviews and documentary evidence. In addition
to its computer-based functions, the Information Section served as
a centralized paralegal staff used for individual projects in each of
WSPF’s task forces.

EARLY HISTORY

One of the major problems facing WSPF attorneys in the summer
of 1973 was assimilating the enormous — and increasing — volume of
information available both on the public record and in private
documents concerning the subject matter of many of the office’s
investigations. Special Prosecutor Cox, aware that the flow of informa-
tion into the office was too great to be collated and analyzed by his
prosecutors, established an Information Section to pull together the
material already available and to prepare for an even greater volume
of testimony and documentary information as the staff and the scope
of investigations expanded.

Lawyers' Summaries

In late June 1973, the Information Section consisted of ten recent
law school graduates who manually summarized grand jury, civil, and
Congressional testimony. They worked 60 to 70 hours a week, con-
centrating on testimony given before the Senate Select Committee
on Presidential Campaign Activities (SSC). The changing requirements
of WSPF task forces often shifted the information needs from one
witness or event to another, and thus aggravated the difficulties
caused by the heavy volume of testimony. By late July the young
lawyers, who had been told that this would be a temporary assignment
and who had become dissatisfied with the tedium and the changing
demands put upon them, were reassigned to task forces and to the
Counsel’s staff.

231

Planning lor Computerization

While the summarizing project was still in process, Harry Bratt,
an administrator with previous experience in computer sytems, had
been detailed from the Law Enforcement Assistance Administration
to study the possibility of establishing a computer operation to handle
the volume of information. Assisted by a research anatyst with para-
legal experience and a lawyer with computer expertise, Bratt began
evaluating computer systems, particularly the testimony abstraction
system used by the Senate Select Committee.

It was evident that WSPF would encounter certain problems in
undertaking a computerized information retrieval system — the need
for security, the shifting nature of prosecutors’ information require-
ments, attorneys’ traditional maintenance of files and records accord-
ing to their individual styles, and lack of use or trust by attorneys
as to computer operations. Bratt recommended undertaking such an
operation only if arrangements could be made for a joint effort with
the Select Committee.

The SSC staff agreed to show WSPF all aspects of the Committee’s
computer operation and to assist in developing a system for the
Prosecution Force. WSPF and SSC staffs also agreed, subject to the
Committee’s approval, that if WSPF decided to undertake computer-
ization they would provide to each other all computer records their
staffs prepared from publicly available material . 1

The Library of Congress, which developed and maintained the
SSC’s computer system, agreed to provide a similar service for WSPF
on a cost reimbursable basis, after obtaining approval to engage in a
non-Congressional project. The Library’s facilities provided the ad-
vantages of a high level of security and rapid start-up time gained
from utilizing the SSC’s already operational system. On this basis,
Cox approved undertaking a computer operation similar to the Select
Committee’s, and Bratt was formally hired to head the operation.

1 The Committee subsequently approved this agreement and allowed WSPF
to copy the computer tape containing its records prepared from the Committee's
public hearings. As additional public materials — press clippings and other public
testimony — were computerized, the Committee provided updated tapes. Later,
the Committee gave WSPF a copy of the computer tape of its records prepared
from non-public materials — its staff interviews, its Executive Session hearings,
and some telephone records and diaries which the Committee had acquired.
Subsequently, much of this non-public material was made public in the SSC's
final report. WSPF eventually computerized several diaries and, since the Com-
mittee also had acquired copies of them, provided a computer tape of the records
prepared from the diaries to the Committee. All other material computerized
by WSPF was prepared from non-public materials which the Committee did not
already have and hence was not provided to the Committee.

232

Organisation of WSPF's Computer System

After some staff discussion and disagreements, Cox decided that
grand jury testimony and WSPF and FBI interviews would be given
computer input priority over the diaries, logs and other documentary
evidence available from witnesses. By August 27, a list of the most
important witnesses had been prepared with highest priorities reserved
for testimony and statements concerning the Fielding break-in, the
break-in of DNC headquarters at the Watergate Office Building, and
the efforts to conceal the connection between those who performed
these break-ins and White House and CRP officials.

A computer input format, similar to that used by the Select Com-
mittee, was developed. It contained the following fields 2 :

1. Record number.

2. Name of witness; date of testimony or interview; and a com-
puter sort number based on date of testimony or interview.

3. Forum (grand jury, WSPF interview, or FBI interview); and
page(s) of transcript or interview write-up on which the wit-
ness’ testimony or statements about an event were located.

4. Summary of testimony or statements about an event; and
name of person who summarized it.

5. Comment; name of commentator; and date of comment (this
allowed the summarizer or anyone else to point out conflicts
between different accounts of the same event, to note informa-
tion such as the date of the event or persons involved in it
when the witness did not explicitly state them, and so forth).

6. Name of person involved in the event; date of event; and a
sort number based on date of event (there would be an entry
in this field for each person involved in the event) .

7. Subject code (as many entries in this field as broad subjects
to which the event related — Watergate, campaign contributions,
etc.).

This input format allowed retrieval of information from the
computer data base in the following ways :

1. Records of statements by a certain witness.

2. Records about events relating to a certain person.

3. Records about events relating to a certain topic.

4. Records about events in which statements were attributed to a
certain person.

5. Records containing any key word or phrase or combination of
key words or phrases.

2 A “field” is a length of characters which always represents the same type of
information, e.g., the computer date field “750416” has a length of six characters
and always represents the date by year (2 characters), month (2 characters), and
day (2 characters). The information in the field may change from record to record,
but this particular field always represents the date.

233

591-439 0 - 75-16

Other retrievals and combinations of retrievals were possible, and
all of the records retrieved could be sorted to print in chronological
order.

WSPF contracted with the Library of Congress for systems
analysis and processing, and the Library agreed to provide the
services of a senior systems analyst, programmers, and operations
personnel on a cost-reimbursable basis. 3 Two evenings each week
were reserved for processing WSPF's data files. To accommodate
security requirements, the Library scheduled these computer runs
between midnight and 8 a.m., when all on-line (teleprocessing)
terminals to the computers were shut off, and arranged that no other
processing would be performed while WSPF data were being processed.
As a further precaution, it was agreed that only the computer operator
and a representative of WSPF would be allowed in the computer
room during the computer runs. The Library also permitted WSPF
to install a safe, to which only WSPF staff had the combination,
in a vault at the Library for storage of tapes, disc packs, and print
ribbons. All printouts, carbons, and key punch cards were to be
taken back to the WSPF office after each computer run.

In mid-August the Select Committee's information staff provided
a two-week training course for the first four research analysts hired
and in early September they began preparing input records. Input
records were typed on key-to-tape machines. The tapes were later
converted to computer readable form.

For its own operation, WSPF’s Information Section decided to
make several changes in the SSC's input procedures. WSPF assigned
a research analyst all of a witness' testimony and other statements
to abstract — rather than splitting transcripts and shifting assignments
to meet immediate priorities as the Committee’s staff did. Also, WSPF
required abstraction of testimony in much greater detail than did the
Select Committee. The Information Section felt that it should not
judge what was or was not important in a witness’ response to a
question, knowing that frequently a point made by a witness or a
vague remark which seems insignificant in one context could be very
significant in another context or to another questioner.

The Information Section also decided to institute a quality control
check for all records prepared for computer input. Few if any of the
prosecutors hired by WSPF had worked with a paralegal staff or had
used computerized methods, and therefore the accuracy of the data
was critical to the section's ability to convince the prosecutors of the
usefulness of computer services. Senior research analysts reviewed all
records against the transcripts.

3 The computer contract with the Library cost $100,000 over a two-year
period. This figure excludes Information Section salary and expense costs.

234

The Select Committee's input procedures allowed very quick
“turnaround time" — the time between receiving transcripts to ab-
stract and having records in the computer — and the Committee staff
used printouts of statements by a witness and of references to him for
questioning that witness in public session hearings. Under the pro-
cedures adopted by the Information Section, particularly the detail
and quality control requirements, the turnaround time was consider-
ably lengthened.

In the fall of 1973 additional staff was hired for the Information
Section. Eventually a staff of two reviewers, six research analysts
and two typists seemed to provide a balanced flow of work for tes-
timony abstraction. By mid-winter, with the added staff and the reso-
lution of procedural questions, the Section could prepare
approximately 900 records for computer input each month. 4

ACTIVITIES OF THE INFORMATION SECTION
Computerization of Testimony and Other Witness Statements

For its first project the Information Section abstracted and
computerized testimony and other statements of people with knowl-
edge of the Fielding break-in or the Watergate cover-up. The section
developed a goal of completing this project in time to aid the Plumbers
and Watergate Task Forces in their preparation for indictments and
trial. In fact, completion could not be accomplished until after the
indictments had occurred, but well before the trial dates.

By May 1974 virtually all relevant grand jury testimony, office
interviews, and other statements by defendants and major witnesses
in the Fielding break-in case had been abstracted and entered in the
computer. By late May, the project produced chronological printouts
of all statements by each defendant and major witness and cross-
reference printouts of what each of these people had said about the
others. A lawyer from the trial team prepared a list of significant
events to be proved at the trial, and the research analysts determined
the various accounts of these events by each witness and defendant
and noted any discrepancies therein. The chronological printouts,
cross-reference printouts, and analyses were provided to the trial
team as aids in reviewing with witnesses what they would be ques-
tioned about at the trial and in evaluating the defendants' expected

4 Roughly, 150 pages of testimony produced 100 records. Under WSPPs input
procedures, each research analyst could abstract approximately 225 pages of
testimony per month. The number of records produced from the interview write-
ups varied greatly, depending on the style of the writer. The actual number of
records entered in the computer per month varied throughout the period of this
project because of frequent temporary transfer of analysts to other projects.

235

defenses. In addition, during the United States v. Ehrlichman trial,
special reports were run at the request of the trial team to review
prior testimony by and about defense witnesses as a basis for antici-
pating their trial testimony and planning their cross-examination.

By the summer of 1974 the Section had completed computerizing
relevant testimony and other statements by the defendants in the
Watergate cover-up case and most of the testimony and other state-
ments by the witnesses deemed by the Watergate task force to be
computer priorities. These records were merged with records from
the Select Committee’s data base. Chronological printouts of state-
ments by each defendant and each witness were not analyzed by the
analysts as had been done for the Fielding case, but were given
directly to the lawyers of the trial team as aids in preparing for
trial.

Also in the summer of 1974 the section began computerizing
testimony and other statements of several witnesses in a Campaign
Contributions Task Force investigation. This was abandoned later
because of the then pressing demands of the Watergate cover-up
trial.

On the whole, computerizing testimony and other witness state-
ments proved far more time-consuming and was far less used in the
Watergate case than had been anticipated. Usage in the Fielding
break-in case and in other investigations was much greater. Certain
attorneys and their investigations were more amenable to use of the
computerized data than were others. These attorneys developed com-
binations of name references and key word queries to retrieve man-
ageable and valuable information from the data base. This technique
generally exploited the more lengthy SSC data base and was used to
great advantage in later work with diary entries and telephone records.
The name or word search, typically at the beginning of an investiga-
tion, provided a fairly comprehensive picture of the SSC’s prior
investigation.

Documentary Evidence

1. Diaries and Appointment Logs. In February 1974 the Informa-
tion Section began computerizing several diaries and appointment logs
which had been acquired by the Campaign Contributions Task Force.
The analysts adoped an input format virtually identical to that used
for abstracting transcripts and created a subject code which would
allow these records to be retrieved from the computer either in con-
junction with testimonial records or as a separate data base. Diary
and log entries were recorded exactly as stated, rather than sum-
marized, except that abbreviations and short notations were clarified.

Diary records were much quicker to abstract and consequently
typing became very backlogged. Approximately 12,000 diary records

236

were transcribed in three months and typing was completed about
three months later. 5 Because of the unforeseen typing lag, computer-
izing each entry in these diaries took much longer to complete than
expected. The computer offered cross reference and selective retrieval
capacities, both of which proved valuable because the wealth of
material pertinent to several investigations could not otherwise be
assimilated. Manual searches by several different investigation teams
would have been very time consuming and not as reliable.

This system proved invaluable, for example, with a cooperating
witness who had furnished various of his diaries that showed his
contacts with potential campaign contributors over a four-year period.
The abstractors became adept at reading the diarist’s handwriting
and abbreviations. Cross reference provided a method of checking
whether and when an individual or corporation was mentioned.
Selective retrieval was used to pull all records referring to any of a list
of individuals or subjects (keywords). This enabled investigators to
pull selectively where contacts were very frequent but on varied
topics.

Lawyers used the computer reports to prepare their questions for
interviews of the diarist about his contacts with contributors and for
questioning other key people involved in campaign and fund raising.
In addition, diary abstracts were also used for questioning the included
persons about contacts they had had with the diarist. The entries
conveyed much about the diarist’s styles of operation. Computer
input of the diaries was substantially complete and ready for the
comprehensive interviews of the witness in early summer 1974.
Printouts were supplemented by manual searches of the untyped
abstracts. In addition to the cross-reference reports, printouts inter-
filing all references to any of a list of persons mentioned or key words
contained in the diary proved valuable in several investigations.

2. Telephone Toll Records. A telephone toll record project began
in spring 1974 with the receipt of the SSC’s computer file based on
telephone records the SSC had received in connection with their
investigation of a matter also under inquiry by WSPF. In order to
make the SSC file usable the Information Section and the Library of
Congress developed a program to match a list of subscribers’ names
compiled by the SSC to the appropriate called or calling numbers.
When this step had been accomplished in fall 1974, the attorney in
charge of the investigation requested that telephone bills subpoenaed
by WSPF from persons under investigation and an IRS computer

5 The relationship of analyst effort to typist effort is difficult to appraise.
Of the four analysts who worked on the project, two had continuing transcript
assignments and two had competing responsibilities. Transcript records con-
stituted roughly one-third of the typing during the spring and summer. The best
estimate of allotment of work for the diary project is 2J4 analysts to % reviewer
to four typists.

237

file of related telephone records be merged with the Senate file. The
IRS data and the new input of records were also checked against the
subscribers’ list; and subscriber names, if identified, were added to the
records. In the course of the investigation this process was repeated
several times as the table of known parties called was expanded.
Comprehensive chronological printouts and printouts showing all
calls to each number were then obtained. The printout reflected the
date of the telephone call, the name of the subscriber of the calling
number, the number called, the name of the subscriber of the number
called, if known, and the cost and time of the call when that informa-
tion appeared on the bill. These printouts were used by the research
analyst assisting in the investigation to study patterns of contact
among the persons being investigated. This information was then
used to issue subpoenas to telephone companies to learn selected
called subscribers’ names. Analysis of this information provided
valuable leads for questioning witnesses and for tracking the activities
of persons under investigation.

3. Indexing . A computer indexing project was undertaken in a
major investigation to organize a substantial body of correspondence,
memoranda, and other personal papers of witnesses and defendants.
The writer (s), receiver (s), date and substance of all important docu-
ments — letters, memoranda, notes, etc. — obtained in the investigation
were indexed and entered in the computer in the following format:

1. Author; date of document; computer sort number based on
date of document.

2. Type of document; number of pages.

3. Addressee.

4. Brief synopsis.

5. Names of persons who drafted, approved, or in any other way
helped prepare or were connected with the document, including
persons who received copies (if such information was reflected
on the document).

6. Comments (such as whose copy WSPF had obtained).

7. All persons mentioned, including author, addressee and persons
mentioned in the synopsis (separate entry for each person) .

Category 7 and the computer sort number were used to arrange
the information in categories 1-6 in cross-reference reports, thus or-
ganizing all documentary references to each person in chronological
order. This retrieval capability proved so satisfactory that a second
stage was undertaken: information culled from other documentary
sources — diaries, telephone bills, business records of time spent on
work for clients, etc. — was added to the computer data base in a
compatible format so that it could be retrieved in conjunction with
the initial input of records.

Final cross-reference reports which reflected, for each defendant
and witness, all relevant documents he had written, received, been
connected with, or been mentioned in, all relevant telephone contacts

238

and meetings he had had, and all relevant actions he had taken, were
then obtained and provided to the lawyers to use in preparation for
trial. One of the significant factors in the success of this project was
that the investigators analyzed the importance of documents and other
facts before computer input was undertaken. This speeded the input
time and minimized the number of irrelevant records on the printouts.

Generally, computer projects involving documentary evidence
proved far more valuable to the prosecutors than earlier projects
oriented to testimony. Each was undertaken at the specific request of
the lawyer or lawyers who desired to use the output, with the lawyers
indicating exactly what information was desired. Each resulted in
comprehensive ordering of information in ways which would have
been virtually impossible under a manual system.

General Reference Reports

In addition to the computer projects undertaken to aid in specific
investigations and trials, the computer was used to provide several
general reference reports for WSPF. One, called the “Name List,” was
an alphabetical listing of all persons whose names had been mentioned
in the investigations. Each was identified by his or her position or title,
and the dates when it was held, if known, or by the activity for which
his or her name had been mentioned. Another, called the “Manage-
ment Report,” was a master listing of civil, congressional, grand jury,
trial, and other testimony transcripts, and congressional, WSPF, FBI,
IRS and other interview write-ups. The Management Report pro-
vided a chronological listing of each witnesses’ testimony and inter-
views, the date, number of pages, and subject matter of the testimony
or interview, whether the transcript or interview write-up was avail-
able in the Central Files, and whether it had been computerized.

The Information Section also maintained cross-reference printouts
of its and the Senate Select Committee’s data bases of testimony and
other statements as master reference volumes. These reflected, for
each person mentioned in the entire data base, all records prepared
from statements by or about the person in chronological order of the
events described. The cross-reference reports from the Select Com-
mittee’s data base, which was much larger than WSPF’s, were par-
ticularly useful for a quick check of a person’s involvement in matters
under investigation. These were used for many purposes by many
members of the staff.

The cross-reference reports were also used after November 1974
as a basis for responding to White House requests about persons being
considered for appointment to high Administration positions.

All types of reference works, but particularly the master cross-
references and the management report saved a great deal of manual
file searching. The management report’s inventory of the central files

239

provided a good start for compiling discovery material for trial. The
availability of printed cross-reference reports enabled the Information
Section to respond quickly to name check requests.

Appeals

As of this writing, two further computer projects are under way,
both to aid in preparation of the brief for the appeal of the Watergate
cover-up case: an index of legal papers filed in the case, by topic; and
an index of the trial testimony, by events testified to.

OTHER DUTIES

In addition to the computer projects, the analysts in the Informa-
tion Section worked on several other projects temporarily assigned to
them on an as-needed basis from the summer of 1973 through Septem-
ber 1975. Task force requests for this additional assistance were evalu-
ated by the section heads and approved by the Deputy Special Prose-
cutor. Analysts were assigned according to the priority and immediacy
of the task force project as it related to the demands for the various
computerized record projects.

Many of these additional assignments related to Presidential tapes
secured from the White House. Information System analysts provided
attorneys with daily summaries of the tapes hearings held before Judge
Sirica in November and December 1973 and January 1974. In August
1974, the Special Prosecutor received tape recordings of 64 Watergate-
related conversations with President Nixon. The entire research
staff, with assistance from others in the office, was assigned to verify
the FBI transcriptions of these recordings. Information Section staff
subsequently transcribed a number of tapes received in Spring 1975.

The Information Section also assumed a variety of other duties.
Analysts played a major part in the identification, collection and
organization of papers and documents to be given to defendants, as
required by the relevant rules of criminal procedure in the Federal
system. Additional tasks included providing daily summaries of the
Watergate and Connally trial testimony, checking briefs for accuracy,
and organizing the central and task force files.

SUMMARY OBSERVATIONS

WSPF commenced its operations when others had already gathered
much information about some of the matters assigned to the Special
Prosecutor. The prosecutors began to organize this information im-
mediately, and could not await the careful planning and development
of a computerized information system. In some cases service of the

240

lawyers through the research analysts' work product lagged behind
investigative needs. Because of the hurried start-up of the information
system, it is difficult to evaluate the potential future utility of com-
puterizing grand jury and office interview testimony during the course
of an investigation. However, even in WSPF's system, the testimony
abstracts and computer runs by various names, dates and subject
matters proved useful as a double check and as a basis for preparation
of cross-examination of some trial witnesses for the defense.

The other computer applications proved much more useful, pri-
marily in the investigative process. The computerized telephone
records, diaries and appointment logs did not merely replace manual
efforts; they produced reports which could not have been produced
manually because of the great volume of material and the level of
detailed analysis which was required. The manipulation of data made
possible by the computerized entries served as a valuable investiga-
tive tool. Also useful in various ways was the general reference material
which could be retrieved in the different modes required by the
prosecutors.

Although WSPF's retrieval system and some of its applications
had been developed for the SSC by the Library of Congress, much
of the work done in the Information Section was experimental. While
computerized information retrieval has been used for legal research,
it had not been used very often for criminal investigations and trials.
Much more needs to be done by the ongoing prosecutorial agencies to
develop systems and applications which can be planned and evaluated
over time, with careful implementation of the resulting methodological
changes in order to build maximum use by prosecutors and a proper
measure of cost effectiveness.

The hiring and use of research analysts, who were all recent
college graduates, proved invaluable in many of the paralegal tasks
presented by investigations and trials. Again, long-range planning
and evaluation is needed to gauge the best kind of preparatory training
! for such tasks and the proper education level needed by the personnel
in order to maintain an effective operation but at the same time not
involve persons having an education level beyond that which is
necessary. In addition, lawyers will need training in computer usages
and in effective use of paralegal support personnel.

2 «

Appendix I:

Administration

Organizations — whether governmental or private — depend in
large part for their success on the work of employees who receive
little or no public recognition of their efforts. In this respect, WSPF
was no exception: the most visible members of the staff were the
attorneys who conducted the investigations and appeared in court.
Their work could not have proceeded as smoothly and effectively
as it did, however, without the assistance of administrative personnel
who provided the necessary support. WSPF's Administrative Office
was responsible for handling the numerous day-to-day questions about
personnel matters, budget, physical facilities and equipment, and
office security. Although WSPF was established as an independent
entity within the Justice Department, with full authority to hire its
own staff, it attempted to conform its administrative practices to
Department policies and guidelines. To avoid unwarranted depar-
tures from Department practices, WSPF's Administrative Officer
reported directly to the Special Prosecutor and consulted with the
Department's Office of Management and Budget.

1. Personnel . During its formative stages, the task of interviewing
and hiring staff members was handled by several attorneys chosen
by Special Prosecutor Cox to assist him in setting up the office.
Thereafter, the primary responsibility for these activities fell to the
Administrative Office, which hired clerical and support personnel
and assisted in the selection of additional attorneys. In addition the
Administrative Office was responsible for the preparation of position
descriptions; determination of grade levels; the handling of all
personnel requests such as appointments, reassignments, promotions
and resignations; and advising and assisting the various task forces
regarding such matters as personnel management, employee relations,
performance evaluations and awards. The magnitude of this task was
amplified by the fluctuation of personnel among task forces and in
and out of WSPF.

The Administrative Office also established a work program with
the Model Secondary School for the Deaf, the high school located at
Gallaudet College in Washington. During the school year, ten deaf
students worked in the Administrative Office. They were responsible

242

for the internal mail system and outside deliveries and performed
other clerical duties. Four college students also worked intermittently
with the Administrative Office on a part-time or full-time basis during
the school year and summer vacations.

2. Budget. The Administrative Office also handled budget prepara-
tion and provided fiscal review and control of expenditures. WSPF's
budget, which was included as part of the Department of Justice
General Administration budget, and its actual expenditures for the
fiscal years (FY) in question were as follows: 1

Actual

Appropriation expenditures

FY 1974 $2,800,000 $2,552,000

FY 1975 2, 865, 000 2, 625, 000

FY 1976 2 2,044,000 [request] 1

Special Prosecutor Cox appeared before the Senate Subcommittee
on Appropriations in July of 1973 for his initial budget request of 90
employees and $2,800,000 in funds to operate the office. This request
was prepared by the Department of Justice. The budgets for FY 1975
and FY 1976, however, were prepared by WSPF itself. After final
review by the Special Prosecutor, they were submitted to the Depart-
ment of Justice for inclusion in its overall budget request. 3

The largest expenditure for FY 1974 — apart from personnel
salaries of $1,555,000 — was used to establish the office: these a start-up ,J
costs included payments for furniture, equipment and office altera-
tions performed to meet stringent security requirements. The follow-
ing year, staff salaries amounted to $1,750,000. Rent, communications
costs and utilities averaged about $265,000 a year; security costs
amounted to about $225,000 annually. The remaining expenditures
were for travel, printing, supplies, machine rentals and court reporter
services. A monthly report, reviewed by the Administrative Officer
and the Special Prosecutor, was provided to the Justice Department
detailing expenditures for that month and year to date. As these figures
indicate, the actual expenditures for each fiscal year were less than
the amount authorized.

3. Physical Facilities. When WSPF was first established in May
1973, temporary quarters were made available in the office of the
Assistant Attorney General for Administration. In early June, the
office moved into permanent space in a building at 1425 K Street NW.
In August, additional office space was rented in the same building.

1 Costs between May 25, 1973, and June 30, 1973, amounted to $250,000
and were absorbed in the Justice Department General Administration budget.

2 The FY 1976 request for funds had to be submitted at an early date before
the date of termination of WSPF investigations could be projected.

3 Although the Attorney General had the power of final review over WSPF’s
budget, the Special Prosecutor had almost complete authority over expenditures.

243

A total of 15,000 square feet was leased and furnished with basic
Government-issue furniture. 4

4. Security. The day-to-day security officer for WSPF was the
Administrative Officer, with overall control and guidance provided
by the Justice Department. A special security director from the
Department was appointed to maintain the integrity of files and docu-
ments and to establish procedures to prevent unauthorized entry into
the office. The security director inspected the suite of offices selected
for WSPF and advised on security construction requirements, the
installation of electronic surveillance and fire detection systems, the
guard services needed by the office, procedures to control access to
the office by both staff members and outsiders and methods of prevent-
ing interception of telephone communications and compromise of
documents.

Contractors were able to perform the necessary physical modifica-
tions to the office within two weeks of locating office space. Sound-
proofing was placed around all pipes and conduits entering the office
space. A closed-circuit television system was installed for observation
of the lobby area at the main entrance to the office. Alarms were at-
tached to windows, doors and walls, and ultrasonic motion detectors
were placed in the Special Prosecutor's office and other key areas.
Officers of the Federal Protective Service provided around-the-clock
protection. A color-coded I.D. picture card system using a double
card exchange was used as a means of controlling employee and visitor
traffic. 5 Visitors were required to have an escort inside the offices at
all times. Security personnel performed periodic electronic sweeps of
office space and telephones. FBI background investigations for TOP
SECRET clearances were completed for all WSPF personnel.

4 The offices occupied portions of two floors with a law library located on
another floor. In addition to its office space at 1425 K Street, the Special Prose-
cutor had the use of several rooms in the U.S. District Courthouse, two of which
were used by Watergate grand juries and court reporters and the others by task
forces during trials.

5 All employees were required to surrender a photo badge when they entered
the office and to wear a specially coded photo badge while in the office.

m

Appendix I:

Charter Documents

CREATION OF THE

WATERGATE SPECIAL PROSECUTION FORCE

* Title 28 -“Judicial Administration

Chapter I — Department of Justice
Part 0 — Organization of the Department of Justice
Order No. 517-73

Establishing the Office of Watergate
Special Prosecution Force

By virtue of the authority vested in me by 28 U.S.C. 509, 510 and 5 U.S.C.
301, there is hereby established in the Department of Justice, the Office of Water-
gate Special Prosecution Force, to be headed by a Director. Accordingly, Part 0
of Chapter I of Title 28, Code of Federal Regulations, is amended as follows:

1. Section 0.1 of Subpart A, which lists the organizational units of the Depart-
ment, is amended by adding “Office of Watergate Special Prosecution Force”
immediately after “Office of the Pardon Attorney.”

2. A new Subpart G-l is added immediately after Subpart G, to read as
follows:

“SUbpart G-l — Office of Watergate Special Prosecution Force

§ 0.37 General Functions .

The Office of Watergate Special Prosecution Force shall be under the direction
of a Director who shall be the Special Prosecutor appointed by the Attorney
General. The duties and responsibilities of the Special Prosecutor are set forth
in the attached appendix which is incorporated and made a part hereof.”

This order is effective as of May 25, 1973,

Date: May 31, 1973.

(S) Elliot Richardson,

Attorney General.

Appendix on Duties and Responsibilities of the Special Prosecutor

The Special Prosecutor. There is appointed by the Attorney General, within
the Department of Justice, a Special Prosecutor to whom the Attorney General
shall delegate the authorities and provide the staff and other resources described
below.

The Special Prosecutor shall have full authority for investigating and pros-
ecuting offenses against the United States arising out of the unauthorized entry

into Democratic National Committee Headquarters at the Watergate, all offenses
arising out of the 1972 Presidential Election for which the Special Prosecutor
deems it necessary and appropriate to assume responsibility, allegations involving
the President, members of the White House staff, or Presidential appointees, and
any other matters which he consents to have assigned to him by the Attorney
General.

In particular, the Special Prosecutor shall have full authority with respect
to the above matters for:

— conducting proceedings before grand juries and any other investigations he
deems necessary;

— reviewing all documentary evidence available from any source, as to which
he shall have full access;

— determining whether or not to contest the assertion of * Executive Privilege’ '
or any other testimonial privilege;

— determining whether or not application should be made to any Federal
court for a grant of immunity to any witness, consistent with applicable
statutory requirements, or for warrants, subpoenas, or other court orders;
— deciding whether or not to prosecute any individual, firm, corporation or
group of individuals;

— initiating and conducting prosecutions, framing indictments, filing informa-
tions, and handling all aspects of any cases within his jurisdiction (whether
initiated before or after his assumption of duties), including any appeals;
— coordinating and directing the activities of all Department of Justice
personnel, including United States Attorneys;

— dealing with and appearing before Congressional committees having juris-
diction over any aspect of the above matters and determining what documents,
information, and assistance shall be provided to such committees.

In exercising this authority, the Special Prosecutor will have the greatest
degree of independence that is consistent with the Attorney General’s statutory
accountability for all matters falling within the jurisdiction of the Department of
Justice. The Attorney General will not countermand or interfere with the Special
Prosecutor’s decisions or actions. The Special Prosecutor will determine whether
and to what extent he will inform or consult with the Attorney General about
the conduct of his duties and responsibilities. The Special Prosecutor will not be
removed from his duties except for extraordinary improprieties on his part.

Staff and Resource Support

1. Selection of Staff. The Special Prosecutor shall have full authority to orga-
nize, select, and hire his own staff of attorneys, investigators, and supporting
personnel, on a full or part-time basis, in such numbers and with such qualifica-
tions as he may reasonably require. He may request the Assistant Attorneys
General and other officers of the Department of Justice to assign such personnel
and to provide such other assistance as he may reasonably require. All personnel
in the Department of Justice, including United States Attorneys, shall cooperate
to the fullest extent possible with the Special Prosecutor.

2. Budget. The Special Prosecutor will be provided with such funds and facilities
to carry out his responsibilities as he may reasonably require. He shall have the
right to submit budget requests for funds, positions, and other assistance, and
such requests shall receive the highest priority.

3. Designation and Responsibility . The personnel acting as the staff and
assistants of the Special Prosecutor shall be known as the Watergate Special
Prosecution Force and shall be responsible only to the Special Prosecutor.

Continued Responsibilities of Assistant Attorney General , Criminal Division .
Except for the specific investigative and prosecutorial duties assigned to the
Special Prosecutor, the Assistant Attorney General in charge of the Criminal
Division will continue to exercise all of the duties currently assigned to him.

Applicable Departmental Policies . Except as otherwise herein specified or as
mutually agreed between the Special Prosecutor and the Attorney General, the
Watergate Special Prosecution Force will be subject to the administrative regula-
tions and policies of the Department of Justice.

Public Reports . The Special Prosecutor may from time to time make public
such statements or reports as he deems appropriate and shall upon completion
of his assignment submit a final report to the appropriate persons or entities
of the Congress.

Duration of Assignment. The Special Prosecutor will carry out these responsi-
bilities, with the full support of the Department of Justice, until such time as,
in his judgment, he has completed them or until a date mutually agreed upon
between the Attorney General and himself.

SPECIAL PROSECUTOR'S
DESIGNATION OF ATTORNEYS

Title 28 — Judicial Administration
Chapter I — Department of Justice
Part 0 — Organization of the Department of Justice
Subpart G-l — Office of Watergate Special Prosecution Force
Order No. 525-73

Delegation of Authority To Designate
Attorneys To Conduct Legal Proceedings

The Office of Watergate Special Prosecution Force was established effective
May 25, 1973. (38 F.R. 14688). The purpose of this order is to make clear that
the Special Prosecutor has full authority to exercise the Attorney General's
authority under 28 U.S.C. 515(a) to designate attorneys to conduct legal pro-
ceedings, including grand jury proceedings.

By virtue of the authority vested in me by 28 U.S.C. 509, 510 and 5 U.S.C.
301, Subpart G-l of Part 0 of Chapter I of Title 28, Code of Federal Regulations,
is amended by adding the following new section 0.38 at the end thereof:

Ҥ0.38 Designation of attorneys. The Special Prosecutor is authorized to
designate attorneys to conduct legal proceedings, including grand jury pro-
ceedings."

Date: 7/8/73.

(S) Elliot Richardson,

Attorney General.

247

CLARIFICATION OF

SPECIAL PROSECUTOR'S AUTHORITY

Title 28 — Judicial Administration
Chapter I — Department of Justice
Part 0 — Organization of the Department of Justice
Subpart G-l — Office of Watergate Special Prosecution Force
Order No. 531-73

Clarification of Authority of Special Prosecutor

The purpose of this order is to clarify the Special Prosecutor's authority with
respect to matters generally assigned to his responsibility. See Department of
Justice Order Nos. 517-73, 518-73, 525-73.

By virtue of the authority vested in me by 28 U.S.C. 509, 510, and 5 U.S.C.
301 Section 0.38 of Subpart G-l of Part 0 of Chapter I of Title 28, Code of Federal
Regulations is amended to read as follows:

§ 0.38 Specific functions. The Special Prosecutor is assigned and delegated the
following specific functions with respect to matters specified in this Subpart:

(a) Pursuant to 28 U.S.C. 515(a), to conduct any kind of legal proceeding,
civil or criminal, including grand jury proceedings, which United States attorneys
are authorized by law to conduct, and to designate attorneys to conduct such
legal proceedings.

(b) To approve or disapprove the production or disclosure of information or
files relating to matters within his cognizance in response to a subpoena, order, or
other demand of a court or other authority. (See Part 16(B) of this Chapter.)

(c) To apply for and to exercise the authority vested in the Attorney General
under 18 U.S.C. 6005 relating to immunity of witnesses in Congressional
proceedings.

The listing of these specific functions is for the purpose of illustrating the
authority entrusted to the Special Prosecutor and is not intended to limit in any
manner his authority to carry out his functions and responsibilities.

Date: 7/31/73.

(S) Elliot Richardson,

Attorney General.

ABOLITION OF
WSPF IN OCTOBER 1973

Title 28 — Judicial Administration

Chapter I — Department of Justice

Part 0 — Organization of the Department of Justice

Order No. 546-73

Abolishment of Office of Watergate Special Prosecution Force

This order abolishes the Office of Watergate Special Prosecution Force. The
functions of that Office revert to the Criminal Division.

By virtue of the authority vested in me by 28 U.S.C. 509, 510 and 5 U.S.C.
301, the Office of Watergate Special Prosecution Force is abolished. Accordingly,

Part 0 of Chapter I of Title 28, Code of Federal Regulations, is amended as
follows :

1. Section 0.1 of Subpart A, which lists the organizational units of the Depart-
ment, is amended by deleting “Office of Watergate Special Prosecution Force.”

2. Subpart G-l is revoked.

Order No. 517-73 of May 31, 1973, Order No. 518-73 of May 31, 1973, Order
No. 525-73 of July 8, 1973, and Order No. 531-73 of July 31, 1973, are revoked.
This order is effective as of October 21, 1973.

/S/ Robert H. Bork,

Acting Attorney General .

Date: Oct. 23, 1973.

REESTABLISHMENT OF
WSPF IN NOVEMBER 1973

Title 28 — Judicial Administration
Chapter I — Department of Justice
Part 0 — Organization of the Department of Justice
Order No. 551-73

Establishing the Office of Watergate Special Prosecution Force

By virtue of the authority vested in me by 28 U.S.C. 509, 510 and 5 U.S.C.
301, there is hereby established in the Department of Justice, the Office of Water-
gate Special Prosecution Force, to be headed by a Director. Accordingly, Part 0
of Chapter I of Title 28, Code of Federal Regulations, is amended as follows:

1. Section 0.1(a) which lists the organization units of the Department, is
amended by adding “Office of Watergate Special Prosecution Force” immediately
after “Office of Criminal Justice.”

2. A new Subpart G-l is added immediately after Subpart G, to read as
follows:

“ Subpart G-l — Office of Watergate Special Prosecution Force

§ 0.37 General Functions.

The Office of Watergate Special Prosecution Force shall be under the direction
of a Director who shall be the Special Prosecutor appointed by the Attorney
General. The duties and responsibilities of the Special Prosecutor are set forth in
the attached appendix which is incorporated and made a part hereof.

§ 0.38 Specific Functions.

The Special Prosecutor is assigned and delegated the following specific func-
tions with respect to matters specified in this Subpart:

(a) Pursuant to 28 U.S.C. 515(a), to conduct any kind of legal proceeding,
civil or criminal, including grand jury proceedings, which United States attorneys
are authorized by law to conduct, and to designate attorneys to conduct such
legal proceedings.

(b) To approve or disapprove the production or disclosure of information or
files relating to matters within his cognizance in response to a subpoena, order,
or other demand of a court or other authority. (See Part 16(B) of this chapter.)

(c) To apply for and to exercise the authority vested in the Attorney
General under 18 U.S.C. 6005 relating to immunity of witnesses in Congressional
proceedings.

249

591-439 0 - 75 - 17

The listing of these specific functions is for the purpose of illustrating the
authority entrusted to the Special Prosecutor and is not intended to limit in any
manner his authority to carry out his functions and responsibilities.”

Date: 2 Nov 1973.

(S) Robert H. Bork,

Acting Attorney General.

Appendix on Duties and Responsibilities
of the Special Prosecutor

The Special Prosecutor. There is appointed by the Attorney General, within
the Department of Justice, a Special Prosecutor to whom the Attorney General
shall delegate the authorities and provide the staff and other resources described
below.

The Special Prosecutor shall have full authority for investigating and prose-
cuting offenses against the United States arising out of the unauthorized entry
into Democratic National Committee Headquarters at the Watergate, all offenses
arising out of the 1972 Presidential Election for which the Special Prosecutor
deems it necessary and appropriate to assume responsibility, allegations involving
the President, members of the White House staff, or Presidential appointees,
and any other matters which he consents to have assigned to him by the Attorney
General.

In particular, the Special Prosecutor shall have full authority with respect to
the above matters for:

— conducting proceedings before grand juries and any other investigations he
deems necessary;

—reviewing all documentary evidence available from any source, as to which
he shall have full access;

— determining whether or not to contest the assertion of “Executive Privilege”
or any other testimonial privilege;

— determining whether or not application should be made to any Federal
court for a grant of immunity to any witness, consistently with applicable
statutory requirements, or for warrants, subpoenas, or other court orders;

— deciding whether or not to prosecute any individual, firm, corporation or
group of individuals;

— initiating and conducting prosecutions, framing indictments, filing informa-
tions, and handling all aspects of any cases within his jurisdiction (whether
initiated before or after his assumption of duties), including any appeals;

— coordinating and directing the activities of all Department of Justice
personnel, including United States Attorneys;

— dealing with and appearing before Congressional committees having juris-
diction over any aspect of the above matters and determining what documents,
information, and assistance shall be provided to such committees.

In exercising this authority, the Special Prosecutor will have the greatest
degree of independence that is consistent with the Attorney General's statutory
accountability for all matters falling within the jurisdiction of the Department of
Justice. The Attorney General will not countermand or interfere with the Special
Prosecutor's decisions or actions. The Special Prosecutor will determine whether
and to what extent he will inform or consult with the Attorney General about
the conduct of his duties and responsibilities. In accordance with assurances
given by the President to the Attorney General that the President will not exer-
cise his Constitutional powers to effect the discharge of the Special Prosecutor
or to limit the independence that he is hereby given, the Special Prosecutor will
not be removed from his duties except for extraordinary improprieties on his

250

part and without the President’s first consulting the Majority and the Minority
Leaders and Chairmen and ranking Minority Members of the Judiciary Com-
mittees of the Senate and House of Representatives and ascertaining that their
consensus is in accord with his proposed action.

Staff and Resource Support

1. Selection of Staff. The Special Prosecutor shall have full authority to orga-
nize, select, and hire his own staff of attorneys, investigators, and supporting
personnel, on a full or part-time basis, in such numbers and with such qualifica-
tions as he may reasonably require. He may request the Assistant Attorneys
General and other officers of the Department of Justice to assign such personnel
and to provide such other assistance as he may reasonably require. All personnel
in the Department of Justice, including United States Attorneys, shall cooperate
to the fullest extent possible with the Special Prosecutor.

2. Budget . The Special Prosecutor will be provided with such funds and facili-
ties to carry out his responsibilities as he may reasonably require. He shall have
the right to submit budget requests for funds, positions, and other assistance
and such requests shall receive the highest priority.

3. Designation and Resporisibility . The personnel acting as the staff and assist-
ants of the Special Prosecutor shall be known as the Watergate Special Prosecu-
tion Force and shall be responsible only to the Special Prosecutor.

Continued Responsibilities of Assistant Attorney General , Criminal Division .
Except for the specific investigative and prosecutorial duties assigned to the
Special Prosecutor, the Assistant Attorney General in charge of the Criminal
Division will continue to exercise all of the duties currently assigned to him.

Applicable Departmental Policies. Except as otherwise herein specified or as
mutually agreed between the Special Prosecutor and the Attorney General, the
Watergate Special Prosecution Force will be subject to the administrative regula-
tions and policies of the Department of Justice.

Public Reports. The Special Prosecutor may from time to time make public
such statements or reports as he deems appropriate and shall upon completion
of his assignment submit a final report to the appropriate persons or entities of the
Congress.

Duration of Assignments. The Special Prosecutor will carry out these responsi-
bilities, with the full support of the Department of Justice, until such time as,
in his judgment, he has completed them or until a date mutually agreed upon
between the Attorney General and himself.

CLARIFICATION OF

SPECIAL PROSECUTOR'S INDEPENDENCE

Title 28 — Judicial Administration
Chapter I — Department op Justice
Part 0 — Organization or the Department of Justice
Subpart G-T — Office of Watergate Special Prosecution Force
Order No. 554-73

Amending the Regulations Establishing the Office of Watergate Special

Prosecution Force

By virtue of the authority vested in me by 28 U.S.C. 509, 510 and 5 U.S.C.
301, the last sentence of the fourth paragraph of the Appendix to Subpart G-l
is amended to read as follows :

251

In accordance with assurances given by the President to the Attorney General
that the President will not exercise his Constitutional powers to effect the
discharge of the Special Prosecutor or to limit the independence that he is
hereby given, (1) the Special Prosecutor will not be removed from his duties
except for extraordinary improprieties on his part and without the President’s
first consulting the Majority and the Minority Leaders and Chairmen and
ranking Minority Members of the Judiciary Committees of the Senate and
House of Representatives and ascertaining that their consensus is in accord
with his proposed action, and (2) the jurisdiction of the Special Prosecutor
will not be limited without the President’s first consulting with such Mem-
bers of Congress and ascertaining that their consensus is in accord with his
proposed action.

Date: Nov. 19, 1973.

(S) Robert H. Bork,

Acting Attorney General .

CLARIFICATION OF
CLARIFICATION

November 21, 1973.

Leon Jaworski, Esq.

Special Prosecutor

Watergate Special Prosecution Force

1^25 K Street , N. W.

Washington, D.C. 20005

Dear Mr. Jaworski:

You have informed me that the amendment to your charter of November 19,
1973 has been questioned by some members of the press. This letter is to confirm
what I told you in our telephone conversation. The amendment of November 19,
1973 was intended to be, and is, a safeguard of your independence.

The President has given his assurance that he would not exercise his constitu-
tional powers either to discharge the Special Prosecutor or to limit the inde-
pendence of the Special Prosecutor without first consulting the Majority and
Minority leaders and chairmen and ranking members of the Judiciary Committees
of the Senate and the House, and ascertaining that their consensus is in accord
with his proposed action.

When that assurance was worked into the charter, the draftsman inadvertently
used a form of words that might have been construed as applying the President’s
assurance only to the subject of discharge. This was subsequently pointed out to
me by an assistant and I had the amendment of November 19 drafted in order
to put beyond question that the assurance given applied to your independence
under the charter and not merely to the subject of discharge.

There is, in my judgment, no possibility whatever that the topics of discharge
or limitation of independence will ever be of more than hypothetical interest. I
write this letter only to repeat what you already know: the recent amendment
to your charter was to correct an ambiguous phrasing and thus to make clear
that the assurances concerning congressional consultation and consensus apply to
all aspects of your independence.

Sincerely,

(S) Robert H. Bork,
Acting Attorney General.

Appendix K:

Chronology

Date Event

May 28, 1972 Democratic National Committee Headquarters at

Watergate is broken into, electronic surveillance
equipment installed.

June 17, 1972 Five men are arrested at Democratic National Com-

mittee Headquarters while attempting to repair
electronic equipment.

June 28, 1972 G. Gordon Liddy, counsel to FCRP, is fired when he

fails to co-operate with FBI agents investigating the
Watergate break-in.

July 1, 1972 John Mitchell resigns as CRP Chairman.

July 14, 1972 Hugh Sloan resigns as FCRP Treasurer.

July 31 to August 10, Press reports suggest that money for Watergate break-
1972. in came from CRP funds given by Liddy to one of the

arrested men.

August 16, 1972 CRP Chairman Clark MacGregor acknowledges that

Liddy spent CRP funds for security program.

August 30, 1972 The President announces that Dean has conducted and

completed an investigation into the Watergate affair.
Claims that no one in the White House or employed by
the administration w T as involved.

September 15, 1972 Bernard Barker, Virgilio Gonzalez, E. Howard Hunt,

G. Gordon Liddy, Eugenio Martinez, James W.
McCord, Jr., and Frank Sturgis are indicted for their
parts in the June 17, 1972 break-in at Democratic
National Headquarters.

September 17 to Octo- Press reports suggest that CRP maintained a secret cash
ber 25, 1972. fund controlled by Mitchell, Stans, Magruder, Kalm-

bach and II aid em an, which was used to finance the
Watergate break-in and other sensitive political
projects.

October 26, 1972 MacGregor acknowledges existence of special cash fund,

but denies it was used for sabotage against Democrats.

January 8, 1973 Watergate break-in trial begins.

January 11, 1973 Hunt pleads guilty to charges in break-in indictment.

January 15, 1973 Barker, Sturgis, Martinez and Gonzalez plead guilty to

charges in break-in indictment.

January 15 to Janu- Press reports suggest that Watergate defendants were
ary 22, 1973. being paid by unnamed sources — possibly CRP — and

that they were promised money and clemency to plead
guilty.

January 30, 1973 Liddy and McCord are convicted on all counts of break-

in indictment.

253

Date Event

February 7, 1973 Senate unanimously passes S. 60, a resolution creating

the Select Committee on Presidential Campaign Ac-
tivities.

March 19, 1973- _ , McCord writes to Judge Sirica alleging that perjury was

committed at trial and that defendants were pressured
to remain silent.

March 23, 1973 Judge Sirica issues provisional sentences for Watergate

break-in defendants, except McCord; makes McCord’s
letter public.

April 5, 1973 — L. Patrick Gray’s nomination to become Director of the

FBI is withdrawn.

Judge W. Matt Byrne reports a personal meeting with
Ehrlichman, where Ehrlichman suggested a possible
future assignment for Byrne.

April 17, 1973 The President announces White House staff will appear

before the Senate Select Committee, and that there
have been major new developments in the Watergate
investigation, that real progress has been made toward
finding the truth.

April 19, 1973 Attorney General Richard Kleindienst removes himself

from Watergate case. Henry Petersen assumes respon-
sibility for conduct of Watergate investigation.

April 23, 1973 White House issues a statement denying that the Presi-

dent had any prior knowledge of Watergate affair.

April 27, 1973 Gray resigns as acting director of the FBI.

Washington Post reports Gray destroyed documents in
Howard Hunt’s files after a discussion with Ehrlich-
man and Dean.

Judge Byrne reads memo at Ellsberg/ Russo trial
describing Hunt and Liddy break-in of Dr. Fielding’s
office.

Hugh Sloan is accused of submitting false documents to
the General Accounting Office. GAO cites CRP and
Maurice Stans for four campaign expenditure
violations.

April 30, 1973 Haldeman, Ehrlichman, Dean and Kleindienst resign.

The President nominates Elliot Richardson to be-
come new Attorney General.

May 4, 1973. George A. Hearing is indicted on two counts of fabricat-

ing and distributing illegal campaign literature (18
IJSC 612). Pleaded guilty May 11; sentenced to a
one-year prison term on June 15.

May 7, 1973 A spokesman for the President denies that there were

any offers of clemency to anyone connected with the
Watergate affair.

Richardson announces that he will appoint a special
prosecutor.

May 9, 1973 Egil Krogh resigns; claims full responsibility for the

Fielding break-in.

May 9 to May 22, Richardson confirmation hearings are held before the

1973. Senate Judiciary Committee.

May 10, 1973 Mitchell, Stans, Robert Vesco and Harry Sears are

indicted for attempting to impede a SEC investigation
of Vesco.

254

j Date Event

May 11, 1973- Judge Byrne dismisses all criminal charges against

Ellsberg and Russo in Pentagon Papers case.

May 17, 1973 Senate Select Committee begins public hearings.

May 21, 1973 Richardson announces nomination of Archibald Cox as

Special Prosecutor.

May 23, 1973 Richardson is confirmed by Senate to become new

Attorney General.

May 25, 1973 Richardson is sworn in as Attorney General. Cox is

sworn in as Special Prosecutor.

June 12, 1973 Court orders use immunity for Dean and Magruder.

June 25, 1973 Dean tells Senate Select Committee that the President

knew of the cover-up as early as September 1972.

June 27, 1973 Dean submits “enemies list” memorandum of August

16, 1971, to Senate Select Committee.

Fred LaRue pleads guilty to an information charging
one-count violation of 18 USC 371, conspiracy to
obstruct justice.

June 30, 1973 Earl Silbert, Seymour Glanzer and Donald Campbell,

Assistant U.S. Attorneys for the District of Columbia,
withdraw from the Watergate investigation.

July 7, 1973 The President informs the Senate Select Committee

that he will not personally appear before the Com-
mittee and that he will not grant the Committee
access tofPresidential files.

July 16, 1973- Herbert Ralmbach, in testimony before the Senate

Select Committee, claims that John Ehrlichman
approved cash payments to the burglars who broke
into Watergate.

Alexander Butterfield informs the Senate Select Com-
mittee of the presidential taping system.

July 20, 1973 Liddy refuses to take an oath as a witness before the

House Armed Services Subcommittee during a
Watergate-related investigation.

July 23, 1973 Senate Select Committee issues subpoenas for White

House tapes and documents.

Special Prosecutor Cox issues grand jury subpoena for
tapes and documents needed for investigation into
the Watergate cover-up.

July 24, 1973 Ehrlichman tells the Senate Select Committee that

break-in at Fielding’s office was legal, and that it was
undertaken for national security purposes.

July 25, 1973 The President informs Judge Sirica of his decision to

refuse to comply with the Special Prosecutor’s sub-
poena.

July 31, 1973 The Washington Post reports that the President did not

sign the deed giving his papers to the National
Archives, that the deed was not delivered until April 1
of 1970 (nine months after the effective date of the
1969 law prohibiting tax deductions for such gifts)
and that the deed was never accepted by the Archives
as a formal written document.

August 9, 1973 Senate Select Committee files suit against the President

for failure to comply wuth their subpoena.

255

j Date Event

August 13, 1973- Grand Jury II is empanelled to investigate campaign
contributions, political espionage, plumbers and ITT.

August 16, 1973 Magruder pleads guilty to one count violation of 18

USC 371, conspiracy to unlawfully intercept wire
and oral communications, to obstruct justice and
to defraud the United States.

August 29, 1973 _ Judge Sirica enforces grand jury subpoena to the Presi-

dent for nine presidential conversations.

September 11, 1973 Oral arguments are heard before the U.S. Court of

Appeals concerning refusal of the President to comply
with the Special Prosecutor’s subpoena,

October 1, 1973 Donald Segretti pleads guilty to three counts of violating

18 USC 612, distributing illegal campaign literature.

October 11, 1973 Krogh is indicted on two counts of violating 18 USC

1623, making a false declaration before a grand jury.

October 12, 1973. U.S. Court of Appeals orders the President to produce'

subpoenaed tapes.

October 17, 1973 Minnesota Mining and Manufacturing pleads guilty to

a violation of 18 USC 610, illegal campaign contribu-
tions; fined $3,000.

Harry Heltzer, of Minnesota Mining and Manufactur-
ing, pleads guilty to a non- willful violation of 18 USC
610, illegal campaign contributions; fined $500.

American Airlines pleads guilty to a violation of 18
USC 610, illegal campaign contributions; fined $5,000.

Goodyear Tire & Rubber Company pleads guilty to a
violation of 18 USC 610; fined $5,000.

Russell DeYoung, of Goodyear Tire and Rubber,
pleads guilty to a non-willful violation of 18 USC 610;
fined $1,000.

October 19, 1973 The President offers the Stennis tapes compromise.

Orders Special Prosecutor Cox to seek no further
litigation.

Dean pleads guilty to an information charging a one-
count violation of 18 USC 371, conspiracy to obstruct
justice.

Dwayne O. Andreas, Chairman of the Board, and First
Interoceanic Corporation plead not guilty to four
counts of non-willful violations of 18 USC 610. Both
were acquitted on July 12, 1974.

October 20, 1973 Special Prosecutor Cox holds a press conference where

he explains his refusal to comply with the President’s
order.

The President orders that the Special Prosecutor be
fired. Richardson resigns in protest and Ruckelshaus
is fired. Acting Attorney General Bork fires Special
Prosecutor Cox. Special Prosecution Force is trans-
ferred to the Department of Justice, Criminal Divi-
sion.

October 23, 1973. The President informes Judge Sirica that he will comply

with grand jury subpoena.

October 31, 1973 ... J. Fred Buzhardt, Special Counsel to the President,

informs the Court that two of the subpoenaed tapes do
not exist.

256

Date Event

November 1, 1973 Acting Attorney General Bork announces the selection

of Leon Jaworski to succeed Archibald Cox as Special
Prosecutor.

November 2, 1973 Watergate Special Prosecution Force is re-established

by an order of the Acting Attorney General.

November 5, 1973 Leon Jaworski is sworn in as the new Special Prosecutor.

Segretti is sentenced to serve six months in prison.

November 7, 1973 Senate passes S.R. 194, affirming the authority of the

Select Committee to subpoena and sue the President.

November 9, 1973 Final Watergate break-in sentences are handed down.

November 12, 1973 Braniff Airways pleads guilty to a violation of 18 USC

610, illegal campaign contributions; fined $5,000.

November 13, 1973 Hardling L. Lawrence, of Braniff, pleads guilty to a

non- willful violation of 18 USC 610; fined $1,000.

Gulf Oil Corporation pleads guilty to a violation of 18
USC 610; fined $5,000.

Claude C. Wild, Jr., of Gulf Oil, pleads guilty to a viola-
tion of 18 USC 610; fined $1,000.

Ashland Petroleum Gabon, Inc., pleads guilty to a viola-
tion of 18 USC 610; fined $5,000.

Orin Atkins of Ashland Petroleum, pleads no contest to
charges of non-willful violations of 18 USC 610;
fined $1,000.

November 21, 1973 Buzhardt informs Judge Sirica of an 18% minute gap on

the tape of a June 20, 1972 conversation between the
President and Haldeman.

Judge Sirica appoints a panel of scientific experts to
examine tapes of presidential conversations handed
over in compliance with the July 23rd grand jury
subpoena.

November 29, 1973 ____ Dwight Chapin is indicted on four counts of violating
18 USC 1623, making false declarations before a
grand jury.

November 30, 1973 Krogh pleads guilty to an information charging one-

count violation of 18 USC 241, conspiracy to violate
civil rights.

Judge Sirica holds hearings, in camera , concerning
executive privilege claims on three of the subpoenaed
tapes.

December 4, 1973 Phillips Petroleum Company pleads guilty to a violation

of 18 USC 610, illegal campaign contributions; fined
$5,000.

William W. Keeler, of Phillips Petroleum, pleads guilty

to a non-willful violation of 18 USC 610; fined $1,000.

December 6, 1973 Brief for the U.S. in conviction appeal of G. Gordon

Liddy is filed (DNC break-in).

December 19, 1973 Carnation Company pleads guilty to a violation of 18

USC 610; fined $5,000.

H. Everett Olson, of the Carnation Company, pleads
guilty to a non-willful violation of 18 USC 610:
fined $1,000.

January 7, 1974 Grand Jury III is empanelled to investigate matters

similar to those investigations carried out by Grand
Jury II.

257

Date Event

January 21, 1974 Herbert Porter is charged with a one-count violation of

18 USC 1001, making false statements to agents of
the FBI.

January 24, 1974 Krogh is sentenced to a prison term of two to six years,

all but six months suspended. October 11 indictment is
dismissed.

January 28, 1974 Porter pleads guilty to January 21 information.

February 6, 1974 House of Representatives authorizes House Judiciary

Committee to investigate if grounds exist to impeach
the President.

February 25, 1974 Herbert W. Kalmbach pleads guilty to a one-count

violation of the Federal Corrupt Practices Act, and
one count of promising Federal employment as a
reward for political activity. He is sentenced to serve
6-18 months and fined $10,000 for the first count,
six months for the second. Sentences are to run
concurrently.

March 1, 1974 Watergate cover-up indictment: Colson, Ehrlichman,

Haldeman, Mardian, Mitchell, Parkinson, and
Strachan are charged with offenses stemming from
events following the break-in at the Democratic
National Headquarters on June 17, 1972.

March 4, 1974 Briefs for the U.S. in conviction appeals of McCord and

Hunt are filed.

March 6, 1974 Hearing is held before Judge Sirica on transfer of grand

jury materials to the House Judiciary Committee.
March 7, 1974 Fielding break-in indictment: Barker, Colson, De Diego,

Ehrlichman, Liddy, Martinez are charged with
offenses stemming from the September 3-4, 1971,
break-in at the Los Angeles office of Dr. Fielding.

Diamond International Corporation pleads guilty to a
violation of 18 USC 610; fined $5,000.

Ray Dubrowin, of Diamond International, pleads
guilty to a non-willful violation of 18 USC 610;
fined $1,000.

March 15, 1974 Special Prosecutor Jaworski issues subpoena for specified

documents for use in grand jury.

March 18, 1974 Judge Sirica announces decision to permit transfer of

grand jury material to the House Judiciary Committee.

March 20, 1974 Haldeman and Strachan file petition for writ of man-

damus with U.S. Court of Appeals concerning transfer
of grand jury material.

March 21, 1974 U.S. Court of Appeals hears Haldeman and Strachan

petition. Denied later in the day.

March 26, 1974 Grand jury materials are transferred to the House

Judiciary Committee.

March 29, 1974 President complies with the Special Prosecutor’s

March 15 subpoena.

April 1, 1974 Brief for the U.S. in conviction appeals of Barker,

Martinez, Sturgis, and Gonzalez is filed.

April 3, 1974 Howard E. Reinecke indicted on three counts of perjury.

258

Date Event

April 5, 1974 Chapin found guilty on two of three counts.

American Ship Building is charged with one count of
conspiracy and one count of illegal campaign contri-
butions, 18 CSC 610.

George M. Steinbrenner, III, President of American
Ship Building, is charged with one count of conspiracy,
five counts of willful violation of 18 USC 610, two
counts of aiding and abetting an individual to make a
false statement to agents of the FBI in violation of
18 USC Sections 2 and 1001, four counts of obstruc-
tion of justice in violation of 18 USC 1503 and two
counts of obstruction of a criminal investigation,
18 USC 1510.

John H. Melcher, Jr., vice-president of American
Ship Building, pleads guilty to a charge of being an
accessory after the fact to an illegal campaign contri-
bution; fined $2,500.

Porter is sentenced to a minimum of 5 months and a
maximum of 15 months in prison, all but 30 days
suspended. Served April 22 to May 17.

April 16, 1974 Special Prosecutor issues a trial subpoena for 64 White

House taped conversations.

April 28, 1974 Mitchell and Stans are acquitted on all charges in

Vesco trial.

April 30, 1974- President submits transcripts of recorded conversations

to House Judiciary Committee.

May 1, 1974 Thomas V. Jones, President of Northrop Corp., pleads

guilty to a one-count charge of willfully aiding and
abetting a firm to commit a violation of a statute
prohibiting campaign contributions by Government
contractor, 18 USC 611; fined $5,000.

Northrop Corporation pleads guilty to violations of 18
USC 611; fined $5,000.

James Allen, of Northrop, pleads guilty to non-willful
violations of 18 USC 610; fined $1,000.

May 3, 1974 Panel of experts appointed by Judge Sirica issues a

report on their examination of White House tapes.

May 6, 1974 Lehigh Valley Cooperative Farmers pleads guilty to a

violation of 18 USC 610; fined $5,000.

May 15, 1974 Chapin is sentenced to serve 10 to 30 months.

May 16, 1974 Kleindienst pleads guilty to a violation of 2 USC 192,

refusal to answer pertinent questions before a Senate
Committee. Later sentenced to serve 30 days, and
fined $100. Sentence is suspended.

May 17, 1974 Richard Allison, of Lehigh Valley Cooperative Farmers,

pleads guilty to a non-willful violation of 18 USC 610;
fined $10,000. Sentence is suspended.

May 20, 1974 Judge Sirica enforces Special Prosecutor’s trial subpoena

of April 16.

May 21, 1974 Magruder is sentenced to a prison term of ten months

to four years.

May 22, 1974 De Diego indictment is dismissed in Fielding break-in

case.

239

Date Event

May 28, 1974 Francis X. Carroll pleads guilty to non-willful viola-

tions in Lehigh Valley contributions case, 18 USC
sections 2 and 610.

May 31, 1974 Supreme Court grants writs of certiorari on enforcement

of tapes subpoena.

Chief Judge George Hart grants an extension to Grand
Jury I. Expiration date set at December 4, 1974.

June 3, 1974 Charles Colson pleads guilty to an information charging

one count of obstruction of justice. Previous indict-
ments are dismissed.

June 7, 1974 Court of Appeals denies petition for writ of mandamus

to recuse Judge Sirica.

June 14, 1974 Court of Appeals hears oral arguments in the appeals

of Liddy, Barker, Martinez, Sturgis, McCord, Hunt,
and Gonzalez.

June 21, 1974 Colson is sentenced to serve one to three years in prison

and is fined $5,000.

June 24, 1974 __ National By-Products, Inc., pleads guilty to a viola-

tion of 18 USC 610; fined $1,000.

June 26, 1974 Fielding break-in trial begins.

June 27-28, 1974 James St. Clair appears before the House Judiciary

Committee to present a defense for the President.

July 8, 1974 Supreme Court hears oral arguments in U.S. v. Nixon.

July 12, 1974 Jury returns guilty verdict against Ehrlichman,

Martinez, Liddy and Barker in Fielding break-in
trial.

July 23, 1974 David Parr pleads guilty to a one-count charge of

conspiracy to make an illegal campaign contribution.
He is later sentenced to four months in prison and
fined $10,000.

July 24, 1974 Supreme Court unanimously upholds Special Prosecu-

tor’s tapes subpoena for Watergate trial.

July 25, 1974 Supreme Court denies petition for writ of certiorari

to review ruling concerning recusal of Judge Sirica.

July 27, 1974 Jury finds Reinecke guilty on one count of perjury.

House Judiciary Committee adopts Article I of im-
peachment resolution charging the President with
obstruction of justice.

July 29, 1974 John Connally is indicted on two counts of accepting an

illegal payment, one count of conspiracy to commit
perjury and obstruct justice, and two counts of making
a false declaration before a grand jury.

Jake Jacobsen is indicted on one count of making an
illegal payment to a public official.

House Judiciary Committee adopts Article II of im-
peachment resolution charging the President with
misuse of powers, violating his oath of office.

July 30, 1974 House Judiciary Committee adopts Article III of

impeachment resolution charging the President with
failure to comply with House subpoenas.

July 31, 1974 Sentences are handed down in Fielding break-in case.

Harold S. Nelson pleads guilty to charges of conspiracy
to make an illegal payment to a Government official,
and to make illegal campaign contributions.

260

Date Event

August 1 ; 1974 Associated Milk Producers, Inc., pleads guilty to one

count of violating 18 USC 371, and five counts of
violating 18 USC 610; fined $35,000 (campaign
contributions) .

August 2, 1974 Dean is sentenced to serve a prison term of one to four

years.

August 7, 1974 Jacobsen pleads guilty to July 29 indictment.

August 9, 1974 Richard Nixon resigns from office.

August 12, 1974 Norman Sherman pleads guilty in a dairy contributions

matter to non-willful violation of 18 USC 610, sections
2 and 610.

John Valentine pleads guilty in a dairy contributions

matter to non-willful violation of 18 USC 610, sec-
tions 2 and 610.

August 14, 1974 U.S. Court of Appeals denies Haldeman petition for

writ of mandamus concerning validity of grand
jury.

August 15, 1974 Members of the Special Prosecution Force meet with

White House Counsel to discuss status of Nixon
materials.

August 22, 1974 U.S. Court of Apeals suggests a three to four week

continuance for Mitchell et al. trial.

August 23, 1974 American Ship Building Company pleads guilty to

April 5 indictment.

George M. Steinbrenner, III pleads guilty to one count
from the April 5 indictment that charged a violation
of 18 USC 371 (conspiracy) and an information
charging one count of violating 18 USC sections 3
and 610.

August 30. 1974 Steinbrenner is fined $15,000; American Ship Building

fined $20,000.

September 2, 1974 Supreme Court denies Ehrlichman’s application for

stay of trial.

September 8, 1974 President Ford pardons Richard Nixon.

President Ford announces the agreement between
Sampson and Nixon giving Nixon ownership and
control over access to Nixon Administration papers.

September 9, 1974 Brief for the U.S. in the conviction appeal of Dwight

Chapin is filed.

September 17, 1974.... LBC & W, Inc. pleads guilty to one count of non-willful

violation of 18 USC 610; fined $2,000.

William Lyles, Sr., of LBC & W, pleads guilty to two
counts of non-willful violations of 18 USC 610; fined
$ 2 , 000 .

September 20, 1974 U.S. Court of Appeals denies Strachan’s petition for a

writ of mandamus.

U.S. Court of Appeals denies Mitchell and Ehrlichman
petitions for writs of prohibition and/or mandamus
seeking indefinite postponement of the trial.

September 28, 1974 Senate Select Committee completes its work.

September 30, 1974 Strachan’s case is severed from Mitchell et al. trial.

October 1, 1974 Watergate cover-up trial begins.

October 8, 1974 Greyhound Corporation pleads guilty to a violation of

18 USC 610; fined $5,000.

261

Date Event

October 12, 1974 Leon Jaworski announces his resignation as Special

Prosecutor, effective October 25.

October 17, 1974 Richard Nixon asks the Court to enforce September 7

Nixon-Sam^on agreement.

October 23, 1974 Time Oil Corporation pleads guilty to two counts of

violating 18 USC 610; fined $5,000.

Raymond Abendroth, of Time Oil, pleads guilty to two
counts of non-willful violations of 18 USC 610; fined
$ 2 , 000 .

October 26, 1974 Henry S. Ruth, Jr., is sworn in as the third Special

Prosecutor.

November 8, 1974 Edward L. Morgan pleads guilty to one count of con-

spiracy to impair, impede, defeat and obstruct the
proper and lawful governmental functions of the IRS.
He is sentenced, on December 19, to serve two years in
prison, all but four months suspended.

November 9, 1974 Special Prosecutor Ruth, Mr. Buchen, counsel to the

President, Mr. Sampson of General Services, and Mr.
Knight, of the Secret Service, sign an agreement that
permits the Special Prosecutor to gain access to Nixon
Administration tapes and documents pertaining to his
investigations.

November 11, 1974 Supreme Court denies Haldeman petition for writ of

certiorari to review denial of mandamus relating to
grand jury extension.

November 15, 1974 Jack Gleason pleads guilty to an information charging

a one-count violation of the Federal Corrupt Practices
Act. Sentence is suspended.

December 3, 1974 Charles N, Huseman, of HMS Electric Corp., pleads

guilty to a non-willful violation of 18 USC 610; fined

$ 1 , 000 .

December 6, 1974 Liddy files petition for writ of certiorari in break-in

conviction.

December 10, 1974 Tim Babcock pleads guilty to a charge of a one-count

violation of making a contribution in the name of
another person. Sentenced later to four months in
prison.

December 11, 1974 Harry S. Dent, Jr., pleads guilty to a one-count charge of

violating the Federal Corrupt Practices Act. He is
sentenced to one month unsupervised probation.

December 12, 1974 Court of Appeals affirms the convictions of Liddy and

McCord in Watergate break-in.

December 13, 1974 DKI for ’74 pleads guilty to violations of failing to report

receipt of contributions and failure to report names,
addresses, occupations and principal places of business
of persons making contributions. Sentence is sus-
pended.

December 19, 1974 President Ford Signs S. 4016 into law— the Presidential

Recordings and Materials Preservation Act.

Stuart H. Russell is indicted on one count conspiracy
to violate 18 USC 610, two counts of aiding and abet-
ting a willful violation of 18 USC 610 (campaign
contributions).

262

Date Event

December 23, 1974 Jack Chestnut is indicted on one count of willful viola-

tion of 18 USC 610, aiding and abetting an illegal
campaign contribution.

December 29, 1974 Watergate cover-up case goes to the jury.

December 30, 1974 Ashland Oil, Inc., pleads guilty to five counts of violating

18 USC 610; fined $25,000.

January 1, 1975 Jury convicts all but Parkinson in cover-up trial.

January 8, 1975 Dean, Magruder and Kalmbach are released from

prison; sentences are reduced to time served.

January 13, 1975 U.S. files memorandum in opposition to Liddy’s petition

for certiorari.

January 27, 1975 Liddy petition for certiorari is denied.

January 28, 1975 Ratrie, Robbins and Schweitzer, Inc., pleads guilty to

violations of 18 USC 610; fined $2,500.

Harry Ratrie and Augustus Robbins, III, of RR&S,
plead guilty to non-willful violations of 18 USC 610;
sentences suspended.

February 7, 1975 ___ Court of Appeals hears oral arguments in Chapin

appeal.

February 10, 1975 McCord files petition for writ of certiorari in break-in

conviction.

February 12, 1975 Grand Jury II expires.

February 19, 1975 Frank DeMarco and Ralph Newman are indicted for

conspiracy to defraud the U.S. and the IRS in con-
nection with the donation of the p re-presidential
papers of Richard Nixon.

February 21, 1975 Sentences handed down in cover-up trial.

February 25, 1975 Court of Appeals affirms convictions of Barker,

Martinez, Sturgis, Gonzalez and Hunt in Watergate
break-in.

March 4, 1975__ Brief for the U.S. to reinstate De Diego indictment is

filed.

March 10, 1975 At the request of the Special Prosecutor, charges against

Strachan are dropped.

March 12, 1975 Maurice Stans pleads guilty to three counts, violation

of the reporting sections of the Federal Election
Campaign Act of 1971, 2 USC, Section 434 (a) and
(b), 441; and two counts violation of 18 USC 610,
accepting an illegal campaign contribution.

March 14, 1975 La Rue is sentenced to serve six months in prison.

March 19, 1975 DeMarco and Newman file a motion to have their case

transferred.

March 31, 1975 Brief for the U.S. in the conviction appeal of Howard

Reinecke is filed.

April 2, 1975 Trial of John Conn ally begins.

April 16, 1975 Court of Appeals reinstates De Diego indictment.

April 17, 1975 Conn ally is acquitted on two counts.

April 18, 1975 Court dismisses remaining three counts against Connally

on motion of the Special Prosecutor.

April 21, 1975 McCord petition for writ of certiorari is denied.

April 23, 1975 Morgan is released from prison.

May 2, 1975 Brief for the U.S. in the conviction appeal of Ehrliehman,

Barker, Martinez, and Liddy is filed (Fielding
break-in) .

263

Date Event

May 5, 1975 Babcock files appeal of sentence on his guilty plea.

May 6, 1975 U.S. files petition for a writ of mandamus in DeMareo-

Newman case.

May 8, 1975 Jury in New York City finds Chestnut guilty.

May 14, 1975 Stans is fined $5,000.

May 19, 1975 Judge Gesell dismisses charges against De Diego at the

request of the Special Prosecutor.

May 29, 1975 McCord is released from prison.

June 6, 1975 Court of Appeals hears oral arguments in Reinecke

appeal.

June 11, 1975 Wendell Wyatt pleads guilty to a misdemeanor viola-

tion of the reporting provisions of the Federal Election
Campaign Act of 1971. Later, fined $750.

June 18, 1975 Court of Appeals hears oral arguments in Ehrlichman

appeal (Fielding break-in).

June 23-24, 1975 Richard M. Nixon gives sworn testimony in matters

under investigation by the Special Prosecutor.

July 3, 1975 Grand Jury III expires.

July 11, 1975 Russell convicted on all three counts in San Antonio,

Texas.

July 14, 1975 Court of Appeals affirms Chapin conviction.

264

Appendix L:

Bibliography of
Watergate Source Materials

There are two useful Government publications for the general reader. They are:

The Final Report of the Senate Select Committee on Presidential Campaign
Activities of the United States Senate [Senate Watergate Committee Report]

and

Impeachment of Richard M. Nixon , President of the United States, Report of
the Committee on the Judiciary, House of Representatives [House Impeachment
Inquiry Report]

Both publications are available through the Government Printing Office.

For the specialist, there are the 25 volumes of testimony before the Senate
Select Committee on Presidential Campaign Activities; 43 volumes of evidentiary
material and testimony released by the House Impeachment inquiry staff; nu-
merous other volumes of relevant hearings and reports by congressional com-
mittees; transcripts of criminal proceedings brought by the Watergate Special
Prosecution Force; and some 35 books published to date on the Watergate scandal.
The bibliography which follows lists, by subject matter, some of these publica-
tions. All Government publications are available [unless supplies are exhausted]
from the Government Printing Office.

OFFICE OF THE SPECIAL PROSECUTOR

Watergate Special Prosecution Force Status Reports, December 31, 1973, Janu-
ary 29, 1974, March 11, 1974, April 11, 1974, May 9, 1974, May 25, 1974,
June 17, 1974, July 1, 1974, August 12, 1974, August 23, 1974, October 7, 1974,
January 27, 1975, February 1, 1975, June 10, 1975.

Watergate Special Prosecution Force First Anniversary Report , May 25, 1974.

Watergate Special Procecution Force Press Kits, July 14, 1973, November 11,
1973.

Nomination of Elliot L. Richardson to he Attorney General, Hearings Before the
Committee on the Judiciary, U.S. Senate, May 9, 10, 14, 15, 21, and 22, 1973.

Special Prosecutor, Hearings Before the Committee on the Judiciary, U.S.
Senate, October 29, 30, 31; November 1, 5, 6, 7, 8, 14, 15, and 20, 1973. Parts
I and II.

Special Prosecutor and Watergate Grand Jury Legislation, Hearings Before the
Subcommittee on Criminal Justice of the Committee on the Judiciary, House
of Representatives, on H.J. Res. 784 and H.R. 10937.

265

591-439 0 - 75 - 18

Nomination of William, Saxbe to be Attorney General, Hearings Before the Com-
mittee on the Judiciary, U.S. Senate, December 12 and 13, 1973.

Nomination of Earl J. Silbert to be IJ.S . Attorney , Hearings Before the Com-
mittee on the Judiciary, U.S. Senate, Parts I and II.

Pardon of Richard M. Nixon and Related Matters , Hearings Before the Sub-
committee on Criminal Justice, Committee on the Judiciary, House of Repre-
sentatives. [Role of Special Prosecutor’s Office in pardon. Proposals to require
Special Prosecutor to issue report stating evidence in its possession relating
to former President Richard M. Nixon.]

Statement of Information , Hearings Before the Committee on the Judiciary,
House, 93d Cong., 2d Sess., Pursuant to H. Res. 803 [House Impeachment
Inquiry]: Book 9, Parts 1 and 2, Watergate Special Prosecutors, Apr. 30, 1973,
July 1, 3 974, and, Appendix 2, Payers in Criminal Cases Initiated by the
Watergate Special Prosecution Force , June 27, 1973- August 2, 1974.

WATERGATE BREAK-IN AND COVER-UP

Hearings Before the Select Committee on Presidential Campaign Activities
of the U.S. Senate. Phase I: Watergate Investigation , Books 1-9, 93d Cong.,
1st Sess.

Final Report of the Select Committee on Presidential Campaign Activities of the
U.S . Senate, 93d Cong., 2d. Sess., Report No. 93-981, June 1974, pp. 1-106.

Pardon of Richard M. Nixon and Related Matters, Hearings Before the Sub-
committee on Criminal Justice of the Committee on Judiciary, House of
Representatives, October, 1974.

Report to the President by the Commission on CIA Activities Within the United
States , Chapter 14, pp. 172-207.

Transcript, United Slates v. John A 7 . Mitchell et ah, Criminal Number 74-110.

Statement of Information, Hearings Before the Committee on the Judiciary,
House, 93d Cong., 2d Sess., pursuant to H. Res. 803 [House Impeachment
Inquiry]: Books I, II, III, and IV, Events Before and After the Watergate
Break-in ;
and,

Appendix 1 , Presidential Statements on the Watergate Break-in and its Investi-
gation. 1974.

Statement of Information Submitted on Behalf of President Nixon , Hearings
Before the Committee on the Judiciary, House, 93d Cong., 2d Sess., pursuant
to H. Res. 803 [House Impeachment Inquiry], Book 1, Events Following the
Watergate Break-in, June 19, 1972-March 1, 1974.

Testimony of Witnesses, Hearings Before the Committee on the Judiciary,
93d Cong., 2d Sess., pursuant to II, Res. 803 [House Impeachment Inquiry]:
Book 1, Alexander Butterfield, Paul O’Brien, and Fred C. LaRue, July 2-8,
1974; Book 2, William O. Bittman, John N. Mitchell, and John W. Dean, III,
July 9-11, 1974; Book 3, Henry E. Petersen, Charles W. Colson, and Herbert
W. Kalmbach, July 12-17, 1974.

United States v. John N. Mitchell , el al, and United States v. Richard M.
Nixon, et al., and Richard M. Nixon v, United Stales, Special Report of the
Joint Committee on Congressional Operations pursuant to sectioxi 402(a)(2)
of the Legislative Reorganization Act of 1970 Identifying Court Proceedings
and Actions of Vital Interest to the Congress, July 24, 1974.

266

Hearings Before the Committee on Armed Services, Senate, 93d Congress,
2d Session, on the transmittal of documents from the National Security-
Council to the Chairman of the Joint Chiefs of Staff (Spring 1973, CIA
involvement in Watergate, Fielding Break-in).

House Banking and Currency Committee Staff Report on the Financial Aspects
and Related Matters Involved in the Watergate Burglary and Associated Republi-
can Campaign Financing. October 31, 1972,

The following books on Watergate and Watergate-related matters are arranged
alphabetically by author:

Bernstein, Carl & Woodward, Bob. All the President’s Men (New York,
Simon & Schuster, 1974).

Breslin, Jimmy. How the Good Guys Finally Won: Notes from an Impeach-
ment Summer (New York, Viking Press, 1975).

Chester, Lewis, et al. Watergate: The Full Inside Story (New York, Ballan-
tine Books, 1973).

Darr, Richard K. and Abiba, Oyeleke, editors. Water gate Bibliography
(River Falls, Wisconsin, River City Research, 1974).

Gold, Gerald, general ed. The Watergate Hearings: Break-in and Cover-up
(New York, Viking Press, 1973). (Proceedings edited by the staff of the New
York Times. Narrative by R. W. Apple, Jr. Chronology by Linder Amster.)

Harward, Donald W., ed. Crisis in Confidence; the Impact of Watergate
(Boston, Little, Brown, 1974). Collected lectures given at the University of
Delaware between Sept. 13 and Dec. 10, 1973.

Knappman, Edward W., ed. Watergate and the White House (New York,
Facts on File, 1973-74).

Lurie, Leonard. The Impeachment of Richard Nixon (New York, Berkley
Pub. Corp., 1973).

McCarthy, Mary Therese. The Mask of State: Watergate Portraits by Mary
McCarthy (New York, Harcourt Brace Jovanovich, 1974).

McCord, James W. A Piece of Tape; the Watergate Story: Fact and Fiction
by James W. McCord , Jr. (Rockville, Md., Washington Media Services, 1974).

Magruder, Jeb Stuart. An American Life: One Man’s Road to Watergate
(New York, Atheneum, 1974).

Mankiewicz, Frank. Perfectly Clear; Nixon from Whittier to Watergate
(New York, Quadrangle, 1973).

Mankiewicz, Frank. U.S. v. Richard M. Nixon: The Final Crisis (New
York, Quadrangle/New York Times Book Company, 1975).

Mosher, Frederick C. et al. Watergate: Implications for Responsible Govern-
ment: A Special Report at the Request of the Senate Select Committee on Presi-
dential Campaign Activities (New York, Basic Books, 1974).

Myerson, Michael. Watergate: Crime in the Suites (New York, Interna-
tional Publishers, 1973).

Osborne, John. The Fifth Year of the Nixon Watch (New York, Liveright,
1974).

Rather, Dan and Gates, Gary Paul. The Palace Guard (New York, Harper
& Row, 1974).

Saffell, David C. Watergate: Its Effects on the American Political System
(Cambridge, Mass., Winthrop Publishers, 1974).

Safire, William. Before the Fall: An Inside View of the Pre-Watergate White
House (Garden City, New York, Doubleday, 1975).

Schnapper, Morris Bartel, ed. Conscience of the Nation (Washington,
Public Affairs Press, 1974).

267

Sobel, Lester A., ed. Money & Politics : Contributions , Campaign Abuses &
the Law (New York, Facts on File, 1974). (“Source is, largely, the printed
record compiled by Facts on File in its weekly reports. 5 ’)

Sussman, Barry. The Great Cover-Up: Nixon and the Scandal of Watergate
(New York, New American Library, 1974).

Tretick, Stanley. They Could Not Trust the King; Nixon, Watergate, and the
American People (New York, Macmillan, 1974). Photos by Stanley Tretick.
Text by William V. Shannon. Foreword by Barbara W. Tuchman.

Washington Post Writers Group. Year of Scandal: How the Washington
Post Covered Watergate and the Agnew Crisis (Washington, Washington Post,
1973).

The Watergate Affair (London, Atlantic Educational Publications, 1973).
Crisis Paper #30.

Watergate: Chronology of a Crisis (Washington, Congressional Quarterly,
Inc., 1973). Compiled by editor William B. Dickinson, Jr.

White, Theodore S. Breach of Faith (Paterson, N.J., Atheneum, 1975).

“Why President Nixon Should be Impeached,” American Civil Liberties
Union (Washington, Public Affairs Press, 1973.)

Winter, Ralph K., Jr., Watergate and the Law; Political Campaigns and
Presidential Power (Washington, American Enterprise Institute for Public
Policy Research, 1974).

Wise, Helen D. What Do We Tell the Children? Watergate and the Future of
Our Country (New York, G. Braziller, 1974).

CAMPAIGN CONTRIBUTIONS

Hearings Before the Select Committee on Presidential Campaign Activities
of the U.S. Senate, Phase III: Campaign Financing, Book 13, 93d Cong.,
1st Sess., Supplemental Material on Campaign Practices and Finances, Book
25, 93d Cong., 2d Sess.

Final Report of the Select Committee on Presidential Campaign Activities of

the U.S . Senate, 93d Cong., 2d Sess., June 1974, pp. 445-578;

and,

pp. 869-930 (Sections on the financial elements of the 1972 Presidential
campaigns of Senator Hubert Humphrey and Congressman Wilbur Mills).

Testimony of Witnesses , Hearings Before the Committee on the Judiciary,
House, 93d Cong., 2d Sess., pursuant to H. Res. 803: Book 3, Henry E.
Petersen, Charles W. Colson, and Herbert W. Kalmbach, July 12-17, 1974.

Hearings Before a Subcommittee of the Committee on Appropriations,
Senate, 93d Cong., 1st Sess., Part 2. (Pp. 1193-1233 deals with budget esti-
mates for fiscal year 1974 for the Securities and Exchange Commission.)
Vesco— SEC.

Hearings Before the Committee on Foreign Relations, Senate, 93d Cong.,
1st Sess. (March 13, 1973), on the nomination of Ruth Farkas to be Am-
bassador to Luxembourg.

DAIRY INDUSTRY CAMPAIGN CONTRIBUTIONS

Executive Session Hearings Before the Select Committee on Presidential
Campaign Activities of the U.S. Senate, Milk Fund Investigation, Books
14-17, 93d Cong. 1st Sess.

269

Transcript, U.S. v. Stuart Russell.

Transcript, U.S. v. Jack Chestnut.

Final Report of the Select Committee on Presidential Campaign Activities of
the U.S. Senate , 93d Cong., 2d Sess., Report No. 93-981, June, 1974, pp.
579-868.

Statement of Information , Hearings Before the Committee on the Judiciary,
House, 93d Cong., 2d Sess., pursuant to H. Res. 803: Book 6, Parts 1 and 2,
Political Contributions by Milk Producers Cooperatives: The 1971 Milk
Price Support Decision, 1974.

Statement of Information Submitted on Behalf of President Nixon , Hearings
Before the Committee on the Judiciary, House, 93d Cong., 2d Sess., pursuant
to H. Res. 803: Book 3, Political Contributions by Milk Producers Coopera-
tives: The 1971 Milk Price Support Decision. 1974.

Report of Wright , Lindsey , <& Jennings to Board of Directors , Associated Milk
Producers, Inc. March 13, 1974.

HUGHES/REBOZO

Executive session hearings before the Select Committee on Presidential
Campaign Activities of the U.S. Senate, Hughes- Rebozo Investigation and
Related Matters, Books 20-24; Exhibits Relating to Hughes-Rebozo Section of
the Final Report, Book 26, 93d Cong., 1st and 2d Sess.

Final Report of the Select Committee on Presidential Campaign Activities of
the U.S. Senate, 93d Cong., 2d Sess., Report No. 93-981, June 1974, pp.
931-1078.

DIRTY TRICKS— CAMPAIGN INTELLIGENCE

Hearings Before the Select Committee on Presidential Campaign Activities of
the U.S. Senate, Phase II: Campaign Practices, Books 10-12, 93d Cong., 1st
Sess.; Supplemental Material on Campaign Practices and Finances , Book 25,
93d Cong., 2d Sess.

Final Report of the Select Committee on Presidential Campaign Activities of the
U.S. Senate, 93d Cong., 2d Sess., Report No. 93-981, June 1974, pp. 107-119,
158-360.

Statement of Information: Appendix 4. Committee on the Judiciary pursuant
to H. Res. 803 [Impeachment Inquiry], Political Matters Memoranda.

Statement of Information: Committee on the Judiciary pursuant to H. Res.
803. [Impeachment Inquiry] Book VII, Parts 1, 2, 3, 4. White House Surveil-
lance Activities and Campaign Activities.

Transcript, U.S. v. Dwight L. Chapin.

FIELDING BREAK-IN— PLUMBERS ACTIVITIES

Final Report of the Select Committee on Presidential Campaign Activities of the
U.S. Senate , 93d Cong., 2d Sess., Report No. 93-981, June 1974, pp. 119-130.

269

Testimony of Witnesses , Hearings Before the Committee on the Judiciary,
House, 93d Cong., 2d Sess., pursuant to H. Res. 803: Book 3, Henry E.
Petersen, Charles W. Colson, and Herbert W. Kalmbaeh, July 12-17, 1974.

Hearings Before the Committee on Foreign Relations, Senate, 93d Cong.,
1st Sess., on nomination of Henry A. Kissinger to be Secretary of State,
Part 1 — confirmation — on September 7, 10, 11, and 14, 1973, and Part 2 —
Plumbers involvement — on September 10 and 17, 1973.

ITT

Statement of Information , Hearings Before the Committee on the Judiciary,
House, 93d Cong., 2d Sess., pursuant to H. Res. 803: [Impeachment Inquiry]
Book 5, Parts 1 and 2, Department of Justice/ITT Litigation — Richard
Kleindienst Nomination Hearings. 1974.

Statement of Information Submitted on Behalf of President Nixon , Hearings
Before the Committee on the Judiciary, House, 93d Cong., 2d Sess., pursuant
to H. Res. 803: Book 2, Department of Justice/ITT Litigation. 1974.

Hearings Before the Subcommittee on Multinational Corporations of the Com-
mittee on Foreign Relations, Senate, 93d Cong., on the ITT Company and
Chile, 1970-71, Parts 1 and 2 (Appendices to Part 1), on March 20, 21, 28,
29, and April 2, 1973.

Transcript, U.S. v. Howard E . Reinecke.

MISUSE OF FEDERAL AGENCIES

Final Report of the Select Committee on Presidential Campaign Activities of the
U.S . Senate , 93d Cong., 2d Sess., Report No. 93-981, June 1974, p. 130-158.
(Section deals with IRS, FBI, Justice, Secret Service, White House Public
Relations) ;
and,

pages 361-444. (Section deals with the use of the powers of incumbency to
politicize the executive branch to insure the Nixon Administration remained
in office.)

Domestic Intelligence Operations for Internal Security Purposes y Hearings Before
the Committee on Internal Security, House of Representatives, February
20, April 1, 2, and 8, and June 4, 1974.

Executive Session Hearings Before the Select Committee on Presidential
Campaign Activities of the U.S. Senate, Use of Incumbency , Responsiveness
Program , Books 18-19, 93d Cong., 2d Sess.

Statement of Information , Hearings Before the Committee on the Judiciary,
House, 93d Cong., 2d Sess., pursuant to H. Res. 803: Book 7, Parts 1, 2, 3
and 4, White House Surveillance Activities and Campaign Activities; and,
Book 8, Internal Revenue Service.

Statement of Information Submitted on Behalf of President Nixon , Hearings
Before the Committee on the Judiciary, House, 93d Cong., 2d Sess., pursuant
to H. Res. 803: Book 4, White House Surveillance Activities.

Final Report of the Select Committee on Presidential Campaign Activities of the
U.S . Senate , 93d Cong., 2d Sess., Report No. 93-981, June 1974, pp. 1106-
1107; 1115-1165 (Summary of the Highlights of the Minority Staff’s Investi-
gation of CIA activitj' in the Watergate incident).

270

Report to the President by the Commission on CIA Activities Within the United
States.

Removing Political Influence from Federal Law Enforcement Agencies , a Pre-
liminary Report of the Special Committee to Study Federal Law Enforcement
Agencies of the American Bar Association, American Bar Association, Chicago,
1975.

Perspective of the American Legal and Academic Communities , Watergate
Reorganization and Reform Act of 1975, Committee on Government Opera-
tions, United States Senate, May 1975.

Removing Politics from the Administration of J ustice, Hearings before the Sub-
committee on Separation of Powers, Committee on the Judiciary, U.S. Senate,
1974.

Warrantless Wiretapping and Electronic Surveillance , 197 J. Joint hearings
before the Senate Judiciary and Foreign Relations Committee, April 3-8 and
May 8-10, and 23, 1974.

Political Intelligence in the IRS. Prepared by the staff of the Senate Committee
on the Judiciary, December 1974.

Investigation into Certain Charges of the Use of the IRS for Political Purposes.
Prepared for the Joint Committee on Internal Revenue Taxation by its staff,
December 20, 1973.

Investigation of the Special Service Staff of the IRS. Prepared for the Joint Com-
mittee on Internal Revenue Taxation by its staff, June 5, 1975.

(Also, the forthcoming hearings and reports of the Senate and House Com-
mittees on Intelligence Activities.)

NIXON INCOME TAXES

Examination of President Nixon’s Tax Returns for 1969 through 1972, Staff
Report prepared for the Joint Committee on Internal Revenue Taxation, 93d
Cong., 2d Sess., Report No. 93-768, 1974.

Statement of Information , Hearings before the Committee on the Judiciary >
House, 93d Cong., 2d Sess,, purusant to H. Res. 803: Book 10, Tax Deduction
for Gift of Papers, 1974; and Book 12, Impoundment of Funds; Government
Expenditures on President Nixon’s Private Properties at San Clemente and
Key Biscayne, 1974.

A Brief, Income Tax Treatment of Donation of Nixon Pre-Presidential Papers,
Tax Analysts and Advocates, Washington, D.C.

WHITE HOUSE TAPES AND DOCUMENTS

Texts of transcripts of Presidential conversations: Submission of Recorded
Presidential Conversations to the Committee on the Judiciary of the House of
Representatives by President Richard Nixon, April 30, 197 4-

Transcripts of Eight Recorded Presidential Conversations, Hearings Before
the Committee on the Judiciary, 93d Cong., 2d Sess., pursuant to H. Res.
893, May-June 1974 [House Impeachment Inquiry].

27 !

Comparison of White House and Judiciary Committee Transcripts of Eight
Recorded Presidential Conservations: Hearings before the Committee on the
Judiciary, House of Representatives, 93d Cong., 2d Sess., pursuant to H. Res.
803, May- June 1974.

The Presidential Transcripts in Conjunction with the Staff of the Washington
Post (New York, Dell Publishing Co., 1974).

The White House Transcripts , Bantam Books, New York, 1974.

Also,

Transcripts of Presidential Conversations subpoenaed by Office of Watergate
Special Prosecutor and submitted in evidence in case of U.S. v. John N.
Mitchell , et al. , USDC DC 74-110.

Transcripts, testimony before Judge Sirica on 18K minute gap and other
aspects of White House tapes, USDC, D.C., November-December 1973 and
January 15 and 18, 1974.

Alexander P. Butterfield testimony, Senate Select Committee on Presidential
Campaign Activities, July 16, 1973, pp. 2073-2090. Hearings Before the Select
Committee on Presidential Campaign Activities of the U.S . Senate , Book 5 .

In Re Grand Jury Subpoena Duces Tecum Issued to Richard M . Nixon or any
Subordinate Officer , Official or Employee with Custody or Control of Certain
Documents or Objects . USDC DC Misc. No. 47-73. Various filings, oral argument
and appellate documents. [July 23 Grand Jury Subpoena for White House
Tapes and Documents.]

Trial Subpoena for 64 Recordings of Presidential Conversations, issued
April 16, 1974. Various filings and arguments before the court. [U.S. v. John N.
Mitchell , et al, USDC DC 74-110.]

Senate Select Committee on Presidential Campaign Activities v. Richard Nixon ,
USDC DC CA 1593-73 and Senate Select Committee on Presidential Campaign
Activities v. Richard Nixon , CADC 74-1258.

The Public Documents Act. Hearings Before the Subcommittee on Printing
of the Committee on House Administration, House of Representatives, on
H.R. 16902 and Related Legislation.

Report to Congress on Title I, Presidential Recordings and Materials Preservation
Act , P.L. 93-526. General Services Administration, March 1975.

Final Report of the Select Committee on Presidential Campaign Activities of the
U.S. Senate, 93d Cong., 2d Sess., Report No. 93-981, June 1974, pp. 1079-1086.

Appendix to the Hearings of the Select Committee on Presidential Campaign
Activities of the U.S. Senate, 93d Cong., 1st and 2d Sess., Legal Documents
Relating to the Select Committee Hearings, Parts 1 and 2.

United States v. Nixon, President of the United States , et al., Certiorari to the
United States Court of Appeals for the District of Columbia Circuit Before
Judgment, Syllabus, Supreme Court of the United States, 1974.

The EOB Tape of June 20, 1972, Report on a Technical Investigation Con-
ducted for the U.S. District Court for the District of Columbia by the Ad-
visory Panel on White House Tapes, May 31, 1974.

Review of a Report Submitted to the U.S. District Court for the District of Columbia
Entitled <( The Tape of June 20, 1972”, Stanford Research Institute,
May 31, 1974.

272

Civil Suits Related to Nixon Administration
Tapes and Documents

Nixon v. Sampson, USD C DC Civil No. 74-1518. Various pleadings and filings.
Reporters Committee for Freedom of the Press v. Sampson.

Lillian Heilman v. Sampson, US DC DC Civil No. 74-1551.

Richard M. Nixon v. Administrator, General Services Administration, USDC
DC Civil No. 74-1852. Nixon suit challenging the constitutionality of Public
Documents Act of 1974.

273

Appendix M:

Staff List

Special Prosecutors: Dates of service

Archibald Cox May 25, 1973-October 20, 1973.

Leon Jaworski November 5, 1973-October 25, 1974.

Henry S. Ruth, Jr October 26, 1974-October 10, 1975. 1

Staff:

Nathaniel H. Akermam June, 1973-October, 1975.

Carolyn B. Amiger July, 1973-October, 1975.

Monica Bailley July, 1973.

Philip J. Bakes, Jr June, 1973-October, 1974.

John F. Barker July, 1 973-September, 1975.

Peter W. Benner May, 1975-August, 1975 (intermittent).

Richard H. Ben-Veniste July, 1973-February, 1975.

James J. Boczar July, 1973-July, 1974 (intermittent).

Nolan A. Bowie December, 1974-May, 1975.

Harry M. Bratt June, 1973-March, 1974.

Margaret M. Breniman June, 1973-March, 1974.

Charles R. Breyer August, 1973-November, 1974.

Stephen G. Breyer June, 1973-June, 1974 (intermittent).

Rose S. Bryan July, 1973-October, 1975 (intermittent).

Florence L. Campbell June, 1973-October, 1975.

Verona Canty July, 1 9 73- January, 1975.

Richard A, Carter,. August, 1974-May, 1975.

Robert M. Chideckel August, 1973-August, 1974.

Toni L. Childers August, 1974-May, 1975.

Phyllis E. Clancy September, 1973-October, 1975.

Joseph J. Connolly June, 1973-May, 1974.

David J. Cook January, 1974-May, 1974.

Richard J. Davis July, 1973-August, 1975.

Barbara B. DeLeon May, 1 974-October, 1975.

Judith A, Denny August, 1973-October, 1975.

Albert P. Deschenes May, 1975-July, 1975 (intermittent).

Michael J. Dickman August, 1 973-September, 1974.

Gayle A. Dicks July, 1973-October, 1973.

Loretta L. Dicks June, 1973-December, 1973.

Theresa A. Doramus July, 1 973-September, 1973.

James S. Doyle June, 1973-May, 1975.

Elizabeth M. Dunigan November, 1974-October, 1975.

Robin D. Edwards January, 1974-August, 1975.

Ruby N. Edwards March, 1974-April, 1974.

1 Ruth served as Deputy Special Prosecutor from July, 1973 to October, 1974.

274

Staff: Dates of service

Linda L. Eiskant January, 1974-October, 1975.

Robin A. Elliott September, 1973-May, 1974.

Ellen M. Fahey August, 1973-October, 1975.

Carl B Feldbaum July, 1973-October, 1975.

Allison Finn November, 1974- July, 1975.

Jonathan A. Flint August, 19 74- January, 1975.

Hamilton P. Fox, III July, 1973-December, 1974.

George T. Frampton, Jr June, 1973-February, 1975.

Nona J. Funk August, 19 73-Sept ember, 1973.

John B. Galus October, 1973-August, 1975.

Marcellus Gant February, 1975-July, 1975.

Kenneth S. Geller July, 1973-October, 1975.

Maureen E. Gevlin July, 1973-October, 1975.

William J. Gilbreth April, 1975- August, 1975 (intermittent).

Sidney M. Glazer July, 1973-September, 1974.

Ann B. Goetcheus October, 1973-July, 1975.

Gerald Goldman June, 1973- April, 1975.

Mary E. Graham July, 1973-October, 1975.

Stephen E. Haberfeld- June, 1973-December, 1974.

Lawrence A. Hammond August, 1973-July, 1974.

Elizabeth A. Harvey May, 1974-October, 1975.

Henry L. Hecht June, 1973-October, 1975.

Philip B. Heymanm May, 1973-June, 1975 (intermittent).

Paul R. Hoeber August, 1973-June, 1974.

Cheryl 0. Holmes October, 1973-October, 1975.

Jay S. Horowitz August, 1973-October, 1975.

Dixie J. Housman June, 1973-March, 1974.

Archibald B, Hughes January, 1975-February, 1975.

Lawrence Iason, II June, 1973-February, 1975.

Dianna Ingram .September, 1973- August, 1975.

Janet Johnson June, 1973-July, 1973.

Marian M. Johnson August, 1973-May, 1975.

Susan E. Kaslow July, 1973-October, 1975.

Sherry F. Kaufman May, 1974- March, 1975.

David H. Kaye June, 1973-December, 1974.

John G. Koeltl August, 19 73-No vember, 1974.

Peter M. Kreindler June, 1973-October, 1975.

Rosanne Kumins May, 1973-August, 1973.

Philip A. Lacovara July, 1973-September, 1974.

Louis B. Lapides August, 1974-May, 1975.

Cynthia F. Law May, 1974-February, 1975.

Michael L. Lehr December, 1974-October, 1975.

Don Loeb January, 197 4- August, 1975 (intermittent).

Gloria L. Lowe June, 1974-October, 1975.

Rosalyn L. Lowenhaupt July, 1974-October, 1974.

Eugene C. Lozner December, 19 73- April, 1974.

Ilona L. Lubman February, 19 74- June, 1974.

Paula J. Lusby August, 1973- January, 1974.

John P. Lydick April, 1975-October, 1975.

Daniel F. Mann August, 1973-October, 1975.

Francis J. Martin June, 1973-October, 1975.

Thomas J. Martorelli January, 1974-May, 1974.

Linda S. Mayes June, 1973-October, 1974.

Thomas F. McBride May, 1973-October, 1975.

Staff:

William H. Merrill

Paul R. Michel

Yolanda D. Molock

Betty J. Monroe

Pamela D. Morris

Scott W. Muller

Stanley Nalesnik

James F. Neal

Shirah Neiman

Jo Ann Nelson

Linda D. Noonan

Robert L. Palmer

Anthony J. PassarettL.

Mark B. Peabody

Julia M. Pfeltz

Donna J. Phillips —

Charles A. Pidano, Jr. —

Charles W. Pitcher, Jr.-

Jean R. Pyles

James L. Quarles, III

Barbara J. Raney

Ann J. Reines

Peter F. Rient

Patricia A. Robertson

Cynthia J. Robinson

Renee M. Robinson

Judith H. Rollenhagen

Patricia Ronkovich

Daniel N. Rosenblatt

Thomas P. Ruane

Charles F. Ruff

Jon A. Sale

Susan L. Sauntry

Meriam I. Schroeder

Monica Schuster

Linda E, Schwarz

Charles S. Scott

Audrey M. Snell

Joseph N. Sprowl, Jr

Barbara A. Stagnaro

Jay B. Stephens

Hazel D. Stewart

Theresa M. Strong

Mark A. Surette

Lois M. Swann

Susanne D. Thevenet

Karen I. Thompson

Mark R. Thompson

Christine M. Thren

Frank M. Tuerkheimer

Richard D. Van Wagenen

Jill W. Volner

James Vorenberg

Richard D. Weinberg

Dates of service
June, 1973-September, 1974.

April, 1 9 74- August, 1975.

September, 1973- August, 1975.

July, 1973-October, 1975.

June, 1973-October, 1975.

October, 1974-June, 1975 (intermittent).
August, 1974-May, 1975.

May, 1 973-January, 1975 (intermittent).

July, 1975-October, 1975.

August, 1974-May, 1975.

September, 1973-September, 1975.

July, 1973-October, 1974.

June, 1974-May, 1975.

August, 19 74- October, 1975.

June, 1 973-No vember, 1974.

July, 1974-December, 1974 (intermittent).
September, 1973- August, 1974.

September, 19 73- August, 1975.

July, 1973- April, 1974.

June, 19 73- June, 1975.

October, 1973-September, 1975.

May, 1974-August, 1975 (intermittent).

May, 1973-October, 1975.

August, 1974- May, 1975.

October, 19 73- July, 1975.

August, 1973-August, 1975.

July, 1973-August, 1974.

June, 1973-September, 1975 (intermittent).
April, 1974-October, 1975.

July, 1973-October, 1975.

July, 1973- July, 1975.

September, 1973-August, 1975.

October, 1974-No vember, 1974 (intermittent).
September, 1973-August, 1974.

October, 19 73- May, 1974.

September, 1973-October, 1975.

January, 1974-May, 1974.

June, 1973-September, 1975.

January, 1974-May, 1974.

July, 1973-October, 1975.

November, 1974-October, 1975.

September, 1973-October, 1975.

September, 1973-May, 1975.

August, 1974-May, 1975.

October, 1973-March, 1974.

July, 1973-September, 1975.

June, 1973- April, 1975.

September, 1 973-January, 1975.

August, 1975-October, 1975.

December, 19 73- June, 1975.

April, 1975-July, 1975.

July, 1973- April, 1975.

May, 1973-October, 1975 (intermittent).

July, 1973- April, 1975.

m

Staff: Dates of service

Suzanne L. Westfall July, 1973-January, 1975.

Audrey J. Williams July, 1973-March, 1975.

Michael Y. Williams July, 1973-October, 1975.

Sally G. Willis June, 1973-October, 1975.

Roger M. Witten June, 1973-December, 1974.

William F. Woods August, 1974-October, 1975.

Tyrone C. Wooten October, 1973-May, 1974.

Gilbert A. Wright July, 19 73- August, 1973.

Pamela Wright July, 1973-October, 1975.

Carol A. Zorger June, 1973-March, 1975 (intermittent).

FEDERAL PROTECTIVE SERVICE:

The following officers were detailed from the General Services
Administration, Federal Protective Service, and provided security
protection for the Watergate Special Prosecution Force:

Lt. James M. Hairston June, 1973-October, 1975.

Lt. Edward B. King June, 1973- April, 1974.

Lt. O. H. Lewis June, 1973-October, 1975.

Johnny L. Augustus June, 1973-October, 1975.

James M. Banks June, 1973-October, 1975.

Lindsay L. Boomer July, 1973-October, 1975.

Russell F. Curry July, 1973 — October, 1975.

Joel D. Davies June, 1973-October, 1975.

Jimmy Dickson June, 1973-October, 1975.

James 0. Highsmith June, 1973-October, 1975.

Willie Hilliard June, 1973-October, 1975.

Wilbert L. Lofton June, 1973-October, 1975.

Joseph F. Maisner August, 1973-October, 1975.

John E. McFarland June, 1973-October, 1975.

Richard A. Me Griff June, 1973-October, 1975.

James F. Moore July, 1973 — October, 1975.

Waymon Stew r art_ June, 1973-October, 1975.

Thomas C. Watson June, 1973-October, 1975.

John C. Wright August, 1973- April, 1975.

277

U.S. GOVERNMENT PRINTING OFFICE : 1975 O - 591-439